MUHAMMAD SHAN GUL, J. Facts of this constitutional petition paint a classic yet sorry and equally misdirected tale of bureaucratic redtapism, lethargy , unabating apathy and inaction leading to an absolutely unwarranted albeit persistent exploitation of a citizen by the Executive.
2. The civil service which has as its 'unity , faith and discipline' 'anonymity , political neutrality and permanence' and which is obligated to serve all citizens has misdirected itself in law in the present matter in more ways than one.
The respondent-School Education Department has been found guilty of misconstruing the reason and aim of, and the purpose for which, the administrative exercise under challenge was undertaken by it.
3. In the matter before this Court, the petitioner was appointed as Headmistress, M.C. Girls High School, Sahiwal on 22.12.1960. In pursuance of MLR 118, adopted and courted through the vehicle of Notification dated 27.8.1973 issued by the School Education Departme nt, the management and control of all Local Bodies schools such as M.C.
Girls High School, Sahiwal was taken over by the Provincial Government w.e.f. 01.7.1975. During her service, the petitioner was granted the requisite regular promotion from BPS-17 to BPS-1 8 as Senior Headmistress on 31.12.1992.
4. Some professors and teachers similarly placed as the petitioner initiated proceedings for being granted the same benefits as were admissible to and payable in respect of scales occupied by teachers of the General Cadre. The matter reached the Hon'ble Supreme Court of Pakistan and vide judgment dated 25.6.1995 passed in "Director , Public Instructions (Schools), Punjab and others v. Mrs. Neelum Amar and others" (1997 SCMR 1445 ), the Hon'ble Supreme Court of Pakistan held that 'since teachers such as the petitioners possessed the same qualifications as were prescribed for the teachers of the general cadre and since the duties which they performed before nationalization were precisely of the same nature as those in the general cadre there was no reason why their services prior to 01.7.1995, the cutoff date, should be ignored while computing their length of service for the purpose of granting them benefits as received by teachers of general cadre.'
5. That in pursuance of the judgment passed by the Hon'ble Supreme Court of Pakistan, the petitioner requested respondent No.3/Secretary , School Education Department repeatedly through applications dated 04.9.1995, 25.9.1995 and 03.6.1996 for the grant of monetary benefits admissible to scales occupied by her counterparts in the General Cadre. The School Education Department started processing the case of the petitioner but remained handicapped because the Annual Confidential Report (ACR) of the petitioner for the year 1995 was, according to her, deliberately withheld. It may be mentioned here that the petitioner applied well in time and much before her retirement i.e. 31.12.1996 .
6. An internal correspondence confirms the above:- "Date Lahore the 17th June 1996 To The Director Public Instruction (SE) Punjab, Lahore.
Subject: PROMOTION T O BS-19 (FEMALE MC. CADRE) (18 CASES)
Reference subject noted above.
2. The promotion case of Mst. Tanvir Rafique, Senior Headmistress, Govt. M.C. GHS Sahiwal, and 17 also others lady officers, have been received on 7.3.1996. The ACR for the year 1995 of the lady officers has not been included in the working paper/synopsis. The same may please be furnished to this Department within a week positively , for onward transmission to P .S.B."
7. From 1996 till 2007, inaction on the part of the respondent-School Education Department continued unabated while the petitioner kept clamoring for attaining her rights. She also sought audience with the Secretary , School Education and finally succeeded in the year 2007 when the then Secretary School Education directed the Director Public Instructions (S.E.), Punjab, Lahore to provide the requisite record necessa ry to consider the application of the petitioner . The inaction continued and this prompted the petitioner to approach the Hon'ble Supreme Court of Pakistan in its Human Rights jurisdiction on 02.3.2010. The Director , Human Rights Cell of the Hon'ble Supreme Court of Pakistan vide correspondence dated 02.7.2010 issued necessary directions to the Secretary , School Education Department and as a result of which the matter of the petitioners' application was expedited. The missing ACR was finally submitted through letter dated 28.2.201 1.
8. During pendency of the constitutional petition under consideration, the Director Public Instructions (S.E.) Punjab, Lahore appeared on 04.4.2017 and informed the Court that the Departmental Promotion Committee had considered the case of the petitioner but regretted her case because antedated promotion could not be allowed to a retired civil servant in view of Notifications dated 23.10.2008 and 17.1 1.2008.
9. That a learned Single Judge allowed the petitioner to amend this constitutional petition so as to lay a challenge to the decision of the Departmental Promotion Committee. Accordingly , a miscellan eous application for amendment of the present constitutional petition was filed and was entertained and allowed. Hence, the petition in its present form.
10. The decision passed by the Departmental Promotion Committee dated 24.3.2017 is reproduced hereunder:- "MINUTES OF DEPARTEMNT AL PROMOTION COMMITTEE MEETING HELD ON 24.03.2017 IN THE OFFICE CHAMBER OF ADDITIONAL SECRET ARY (SCHOOLS), GOVERNMENT OF THE PUNJAB, SCHOOL EDUCA TION DEP ARTMENT , LAHORE The following attended the meeting: 1.MR. MUHAMMAD AKHT AR Additional Secretary (Schools)
School Education Department.CHAIRMAN 2.MR. ABDUL RAZZAQ Deputy Secretary (S.E) School Education DepartmentMEMBER 3.MR. SHOUKA T ALI Section Of ficer (R-II) Regulations Wing, S&GAD.MEMBER 4.MR. MUHAMMAD AFZAL Director (Administration)
Directorate of Public Instruction (S.E), Punjab, Lahore.MEMBER 5.SYED MUMT AZ HUSSAIN SHAH Director of Public Instruction (SE), Punjab, Lahore.MEMBER The DPC considered the case as table agenda item:- ANTEDA TION OF PROMOTION IN BS-18 IN RESPECT OF MRS. TANVEER RAFIQUE, SS/HEADMISTRESS (RTD.), PROVINCIALIZED CADRE, GOVT . M.C. GIRLS HIGH SCHOOL, SAHIW AL, IN THE LIGHT OF W.P.NO.12316/2013 VS SECRET ARY SCHOOL EDUCA TION ETC. Sr. No. Name & Designation with place of posting Remarks Mrs. T anveer Rafique, SS/Headmistress (R TD), Provincialized Cadre, Govt. M.C. Girls High School, Sahiwal.The DPC considered the case of Mrs. Tanveer afique, SS/Headmistress (RTD), Provincialized Cadre, Govt.
M.C. Girls High School, Sahiwal for her antedated promotion from BS-17 to BS-18 w.e.f. 19.11.1986 on at par basis, the date when her counterpart in General Cadre was promoted as such.
Brief history of the case is that the petitioner filed W.P. No.12316/2013 in the Honourable Lahore High Court Multan Bench, Multan with the pray that she may be awarded antedated promotion from BS-17 to BS-18 w.e.f.
19.11.1986, the date when her counterpart in General Cadre was promoted as such which was disposed of vide order dated 09.03.2017 with the direction to DPI(SE) Punjab Lahore to place the case of the petitioner before the relevant DPC for its consideration.
The petitioner was appointed in BS-17 on 20.06.1960 and was further promoted in BS-18 on 31.12.1992. She retired from Government service on attaining the age of superannuation w.e.f. 31.12.1996 and is praying for antedated promotion from BS-17 to BS-18 w.e.f. 19.11.1986, the date when her counterpart in General Cadre was promoted as such.
The DPC observed that matter under section 8(2) of the Punjab Civil Servants Act, 1974 promotion including proforma promotion cannot be claimed by any civil servant as of right and the same is granted with immediate effect and cannot be granted from the date of availability of the post. Moreover , section 21(2) of the PCS Act, 1974 provides as under:- "Where no provision for appeal or review exists in the rules in respect of any order , a civil servant aggrieved by any such order may, except where such order is made by the Governor , within sixty days of the communication to him of such order , make a representation against it to the authority next above the authority which made the order: "Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post."
The petitioner is a retired employee and promotion of retired employee has been barred by amendment in section 8 of PCS Act, 1974 made through Act of Assembly in 2005 and the Regulations Wing of S&GAD also issued advice vide letter dated 17.11.2008, that since promotion can be granted only to a civil servant, a retired officer/official cannot avail the benefit of promotion under existing provisions of sub-section (5) of section 8 of the PCS Act, 1974. Reliance of the same can be taken by the judgment of the Honourable Lahore High Court, Lahore passed in Delawar Ali's case (see 2006 PLC (C.S.) 1034 wherein it was held by the Honourable Court that the promotion from the back date is not available to a retired civil servant under the law as held by the august Supreme Court of Pakistan in case of Muhammad Aslam Sultan v. G.M.
Pakistan Railway 2005 PLC (CS)
1400 . IN Muhammad Aslam Sultan' s case (ibid) the apex Court of Pakistan held as under:- "Thus petitioner is debarred to claim the relief of the promotion after his retirement in view of the peculiar facts and circumstances of the case.
Petition is dismissed and leave declined."
Further , in another recent judgment dated 10.01.2017 passed in Civil Petitions Nos.1079-L to 1211-L/2016 & Civil Petitions Nos.1364-L to 16005-L of 2016, the August Supreme Court of Pakistan has observed as under:- "It is also settled law that a retired civil servant is not entitled to claim promotion under section 8 of the Punjab Civil Servants Act, 1974. No grounds militating the said bar were asserted by the petitioner , who are admittedly retired officers, before the competent fore.
For the foregoing reasons, we do not find any merit in these petitions as such the same are dismissed.
Leave to appeal is declined."
Accordingly , the case for antedated promotion from BS-17 to BS-18 w.e.f.
19.11.1986 in respect of the petitioner is rejected being against the provisions of law/rules/ policy as well as above said judgment dated 10.01.2017 passed by the Apex Court.
11. A bare perusal of this order under challenge reveals that the same has been passed on the basis of misdirection in law and facts. The entire thrust of the order pertains to denial of antedated promotion and, therefore, it is evident that the decision-maker has misdirected itself in law, was prompted by absolutely irrelevant considerations and, therefore, has acted in furtherance of an improper aim. The misdirection in law is evident from the fact that a case of grant of benefits filled within time on the basis of an unequivocal judgment of the Hon'ble Supreme Court of Pakistan was treated as a case for retrospective antedated promotion . What is even more stark is the fact that not even for once did the Departmental Promotio n Committee make a mention or make any reference to the judgment of the Hon'ble Supreme Court of Pakistan reported as "Director , Public Instructions (Schools), Punjab and others v. Mrs. Neelum Amar and other s" (1997 SCMR 1445 ) for the implementation of which the entire exercise was being undertaken. This goes on to show that a pertinent and relevant factor and consideration was lost on the members of the Departmental Promotion Committee.
12. Most alarmingly , there is not a word in the entire minutes about how the case of the petitioner was not that of a retired civil servant claiming promotion but of a civil servant who had laid a claim to such promotional benefits much before she superannuated and who had persisted with and repeatedly agitated her claim during service. Likewise, the minutes are absolutely silent as to how the Education Department itself had set the ball rolling by means of initiating the process. There is likewise no mention of how the petitioner had been agitating the matter since 1995.
Dishonesty on the part of the decision- maker is evident from the fact that instead of alluding to the petitioners' approach to the department in 1995 it has been falsely recorded that the petitioners' case reached the decision- maker via a High Court Order . In the presence of these conspicuous errors, the fact that the prospective and not retrospective case for promotional benefits of the petitioner stemmed out of and was based on a judgment of the Honourable Apex Court binding impregnably all citizens (even bureaucracy!) under Article 189 of the Constitution was not even taken into consideration by the decision-maker , is hardly surprising! The decision-maker has misguided itself by misunderstanding the nature and ethos of the case it sought to decide.
13. Therefore, the stance of the Committee about the petitioner approaching them after retirement is factually incorrect and divorced from reality because as has been noted in the preceding narrative, the petitioner had applied to the respondents much before she retired from service and repeatedly at that. Much before her retirement, the petitioners" case had been brought under consideration of the respondents (paragraph 5 ante refers) and it was only on account of their own failure to muster necessary documents in their own possession, that the case of the petitioner was unnecessarily delayed and finally wrongly rejected. Even on the strict legal plain, the Notifications relied upon by the Departmental Promot ion Committee for denying her such promotion cannot possibly operate retrospectively and can only be allowed to operate prospectively . The petitioner having applied in 1995, there was no place in law or in propriety for the respondents to rely on Notifications issued after thirteen years of submission of her applications while being in service, to deny her the relief so requested.
14. It is evident that the Departmental Promotion Committee misdirected and misguided itself by equating a simple case of promotion of a civil servant who had applied for such benefit on the basis of a judgment of the Hon'ble Supreme Court of Pakistan with the case of a retired civil servant seeking antedated promotion.
15. Similarly , the reliance of the decision-maker on section 8 of the Punjab Civil Servants Act, 1974 is equally misplaced and erroneous. While the petitioner has a right emanating out a judgment of the Honourable Supreme Court of Pakistan, it is equally axiomatic that section 8(5) was added to the Punja b Civil Servants Act, 1974 in the year 2005, exactly ten years after the petitioners' case for grant of promotion was initiated and brought under consideration. Therefore, this provision cannot possib ly be enforced retrospectively and the respondents have been hoisted in their own petard, so to speak!
16. The provision of section 6 of the General Clauses Act, 1924 requires a pending lis to be decided in accordance with applicable law in vogue at the time of the initiation of the said lis (kindly see "Manzoor Ali and 39 others v.
United Bank Ltd. Through President" (2005 SCMR 1785 ), "Mubarak Hussain and others v. Government of Pakistan through Secretary , Rehabilitation and Works Division, Islamabad and others" (1997 SCMR 190) and "Muhammad Tariq Badr and another v. National Bank of Pakistan and others" (2013 SCMR 314).
Moreover , and of the essence is the fact that the provision in question i.e. sectio n 8(5) does not indicate either expressly or by way of necessary intendment that it operates retrospectively . Since it does not, it cannot be allowed to operate retrospectively . Besides, if at all, someone is responsible for denying the petitioner his just dessert, it is the respondents themselv es. They certainly cannot be allowed to reap and harness the benefits of their inertia (kindly see "Abdul Rehman Chaudhry v. Deputy District Officer (Revenue), Lahore Cantt. And 2 others" (2005 YLR 264) and "Sharafat Ali v. Government of Punjab through Chief Secretary and 3 others"
(2005 YLR 1844 ).
17. That, likewise, the Departmental Promotion Committee did not take into consideration a decision passed in W.P. No.1887-S/96 (Multan) by this Court through which a direction was issued for courting and implementing the direction passed by the Hon'ble Supreme Court of Pakistan in "Director , Public Instructions (Schools), Punjab and others v. Mrs. Neelum Amar and others" (1997 SCMR 1445 ). Similarly , the Departmental Promotion Committee also did not advert to or allude to the fact that at least 500 similarly placed persons such as the petitioner had been granted benefits in the light of the judgment of the Hon'ble Supreme Court of Pakistan.
18. Simply put, the Departmental Promot ion Committee has wrongly , incorrectly and erroneously treated the case of the petitioner as that of antedated promotion. Furthermore, the judgments of the Hon'ble Supreme Court of Pakistan spoken of and taken note of in the proceedings of the Departmental Promotion Committee are distinguishable and have little bearing on the issue because in the said matters there was inordinate delay on the part of the petitioners, as also lack of vigilance, in pursuing their claims which is certainly not the case here and besides, the case of the petitioner is not hit by retrospectivity either .
19. What is even more interesting is that the Directorate of Public Instructions i.e. respondent No.4 through its comments dated 29.1.2020 have categorically and unequivocally admitted the assertions of the petitioner and have certified that the approach of the petitioner to the respondents was well in time. This, therefore, puts paid the findings of the Departmental Promotion Committee about the petitioner approaching the respondents after her retirement and quite late in the day .
20. It is true that in judicial review proceedings judges traditionally are cautious in entertaining fact-based challenges since factual questions are primarily the domain of the public body concerned. However , the Court can certainly interfere in a case involving unsupported or unsubstantiated factual conclusions or where the ignorance or disregard of an established and material fact leads to unfairness.
21. A mistake as to a fact can also vitiate a decision where the fact is a condition precedent to exercise of jurisdiction, or where the fact is the only evidential basis for a decision or where the fact was about a matter which expressly or impliedly ought have to be taken into account. Likewise, at times, an error of fact can lead to unfairness. Hence, where there has been a mistake as to an existing fact and where such fact is uncontentious and objectively verifiable and such mistake had played a material even though not decisive part in the decision makers reasoning, then this Court has the jurisdiction to intervene and remedy the defect. Therefore, taking into account a mistaken fact or misunderstanding or ignoring an established and relevant fact leads to judicial review of the decision so reached. And, therefore, this head of review known as error of fact is now sufficiently well established for this Court to rely on it. Reliance is placed on R v London Residuary Body ex p Inner London Education Authority [1998] JR 238, 240, E v Secr etary of State for the Home Department [2004] EWCA Civ 49 [2004] QB 1044, R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 344-G-345C, Begum v. Tower Hamlets London Borough Council [2003] UKHL 5[2003] 2 AC 430 and R (Meredith) v Merthyr Tydfil County Borough Council [2002] EWHC 634 (Admin.)
22. A Division Bench of this Court in "Kamil Khan Mumtaz and others v. Province of Punjab through Chief Secretary , Government of Punjab, Lahore and others" (PLD 2016 Lahore 699) has held that, "an illegality occurs where the decision-maker has misinterpreted a legal instrument relevant to the function being performed or takes into account an irrelevant consideration or fails to take into account a relevant consideration." Applying this test to the case at hand, it is indeed unarguable that the order under challenge is illegal and should be declared to be of no legal ef fect.
23. For what has been discussed above, the order of the Departmental Promotion Committee dated 24.3.2017 is declared to be of no legal effect and is set aside. The case of the petitioner is sent the way of the Secretary , School Education Department, Province of Punjab so as for him to ensure that the judgment of the Hon'ble Apex Court [("Director , Public Instructions (Schoo ls), Punjab and others v. Mrs. Neelum Amar and others")] (1997 SCMR 1445 ) is implemented in letter and spirit.
24. The Secretary , School Education Department was directed to appear in person before this Court today but he is not in attendance on account of what he claims to be miscommunication. It is hoped that the present judgment is courted and implemented and let us hope that there is no miscommunication in this respect.