MUHAMMAD FARRUKH IRFAN KHAN, J.---- Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the decisions of the Provincial Selection Board-I ("PSB-I") dated 24-3-2014 and 29-9-2016 whereby their promoti ons to the post of District Public Prosecutor (BS.19) have been deferred.
2. Brief facts of the case are that on the recommendations of the Punjab Public Service Commission both the petitioners were appointed in Government of Punjab, Law and Parliamentary Affairs Department as Assistant District Attorney (BS.16) on 16-5-1996. Thereafter on recommendations of the Departmental Promotion Committee they were promoted as Deputy District Attorney (BS.17) on regular basis, vide notification dated 3-4-2004. It is asserted that in the year 2006, Punjab Public Prosecution Department was established by virtue of Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (III of 2006). After establishment of the Punjab Public Prosecution Department the petitioners were inducted/transferred to the newly established department as Deputy District Public Prosecutor (BS.18), vide order dated 2.3.2007. Both the petitioners performed duties as District Public Prosecutor for more than one year, vide order dated 30.5.2014 and 16.12.2013, passed by Government of the, Punjab, Public Prosecution Department. It is alleged that case of both the petitioners was considered for promotion for the post of District Public Prosecutor (BS.19) in the meeting of the PSB-I, held on 24.3.2014 but their case was deferred and persons juniors to them were promoted. The case of the petitioners was again considered for promotion in meeting of PSB-I, held on 29.9.2016 but again deferred without any legal justification. Hence, the instant petition.
3. Learned counsel for the petitioners contended that the petitioners have been deprived of their right of promotion without, any lawful reason or ground twice; that both the decisions of the PSB--I are not warranted under the law and Rules on the subject; that the petitio ners enjoy unblemished service record; that they have no adverse PER throughout their service; that the observations of the PSB-I are based on surmises and conjectures; that the Performance Evaluation Reports (PERs) were not taken into consideration while deferring promotion of the petitioners; that PERs of the petitioners for the relevant period i.e. 2014 and 2015 were recorded good by the Reporting Officer; that performance of the petitioners has been assessed up to the mark; that both the petitioners have beers reported to be "honest" by the Reporting Officer and the Counter-signing Officer; that the PSB-I has failed to apply the parameters and guidelines given by the Superior Courts of the country for consideration of promotion cases of the petitioners; that one Muhammad Aftab Zafar , who was deferred for promotion earlier filed W.P.No. 17377/2016, which was allowed by this Court, vide order dated 4.4.2017; that case of the petitioners is on better footing, as compared to the said Muhammad Aftab Zafar , who was awarded minor penalty of withholding of increment for a period of one year and his appeal against the said punishment was rejected; that the petitioners are entitled to the same relief which has alrea dy been granted to similarly placed employee; and that the decisions of the PSB-I being illegal and unlawful may be declared as such. In support of his arguments, learned counsel has relied upon the cases of Syed Iftikhar Hussain Shah and others v. Government of Pakistan and others (1998 SCMR 2009 ), Hameed Akhtar Niazi v. The Secretary , Establishment Division, Government of Pakistan and others (1996 SCMR 1185) and Government of Punjab through Secretary Education, Civil Secretariat, Lahore and others v . Sameena Parveen (2009 SCMR 01).
4. Conversely , learned counsel for the respondent Department as well as the learned Addl. A.G. has opposed the instant petition by arguing that the instant petition is not maintainable due to the bar as contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as the matter agitated in this petition relates to the terms and conditions of their service, which exclusively falls within the domain of the Punjab Service Tribunal; that promotion cannot be claimed as a matter of right; that in meeting of PSB-I it was brought to notice that during postings of the petitioners at various stations their reputation remained questionable; that the Administrative Department was asked to monitor the performance of the petitioners for six months and file a special report about their integrity/reputation; that on the basis of the special report their cases for promotion were deferred in the meeting held on 29.9.2016, the Administrative Department has again been asked to monitor performance of the officers for one year and submit special report qua their integrity/reputation; that the PSB-I has lawfully deferred the cases of promotion of the petitioners as per Promotion Policy , 2010; and that cases of promotion of the petitioners will be considered after receiving special reports of one year Performance.
5. Arguments heard. Record perused.
6. The question of maintainability of the instant petition is taken up first. The matter agitated before this Court relates to the determination of fitness of the petitioners for promotion. In the case of Secretary Establishment Division, Government of Pakistan, Islamabad v. Aftab Ahmed Manika and others (2015 SCMR 1006 ) the Hon'ble Supreme Court of Pakistan has observed as under: "Section 4 of the Federal Service Tribunals Act, 1973 provides for appeals to the Tribunal by a civil servant aggrieved of any order regarding terms and conditions of his service. Clause (b) of subsection (1) of section 4 of the Federal Service Tribunal Act expressly bars the Tribunal from entertaining appeal against the decision of a departmental Authority determining the fitness or otherwise of a person to be promoted to a higher grade. The Tribunal has thus no jurisdiction to examine whether or not a civil servant is fit for promotion to a higher grader Under Clause (2) of Article 212 of the Constitution the jurisdiction of the Court is ousted only over matters falling within the exclusive jurisdiction of the Tribunal established under Clause (1) of Article 212. As the determination of fitness of a civil servant for promotion has been excluded from jurisdiction of the Tribunal, the ouster Clause (2) of Article 212 therefore does not extend to such matters."
In the present case, the matter of promot ion of the petitioners has been deferred by the competent authority twice.
The petitioners have alleged discrimination and violation of settled principles of law in the matters of fitness for promotion, therefore, this Court has got jurisdiction to interfere in this matter . Reliance in this regard is placed on the case of Muhammad Iqbal and others v. Excutive District Officer (Revenue), Lodhran and another (2007 SCMR 682). On the strength of the dictum laid down by the august Supreme Court of Pakistan I am of the considered view that the instant writ petition is maintainable. The objection qua maintainability of this writ petition raised by the learned Law Of ficer is overruled.
7. While adverting to the grievance raised in this petition qua deferment of the petitioners for promotion twice I have perused the impugned letters dated 16.4. 2014 and 27.10.2016, issued by Governm ent of the Punjab, Services and General Administration Department. Through letter dated 16.4.2014 while approving the proposals and recommendations of PSB-I the competent Authority has rendered the following decision in the matter of promotion of both the petitioners: "The Board was apprised that there were certain questions about conduct of the officer. Therefore, after detailed deliberations the Board was of unanimous opinion that the reputation of the officer remained questionable during his various postings creating doubts regarding his suitability for promotion to higher scale.
Keeping in view the aforementioned facts, overall service profile and after giving due consideration to the nature of the duties, competence of the officer, reputation and other qualities, the Board recommended that the officer may be deferred for appointment to the pot of District Public Prosecutor (BS-19) on acting charge basis The Board further desired that the Administrative Department may watch/monitor performance of the officer for six months and initiate a special report about the integrity/reputation of the of ficer for consideration his case by the PSB-I."
The competent Authority through letter dated 27.10.2016 again deferred the case of the petitioners for promotion with the following observations/decision: "Deferred for promotion to the post of District Public Prosecutor (BS 19) on regular basis. The Board further desired that the Administrative Department may watch/monitor performance of the officer for one year and initiate a special report about tie integrity/reputation of the of ficer for consideration of his case by the PSB-I."
In the case of Syed Iftikhar Hussain Shah and others v. Government of Pakistan and others (1998 SCMR 2009 ) the Hon'ble Supreme Court of Pakistan while dealing with the matter of promotion has made the following observations: "It was incumbent upon the Departmental Promotion Committee to have considered the annual confidential reports and other material as well as the merits of each candidate while deciding to promote or ignore an of ficial."
Perusal of both the deferment letters shows that cases, of promotion of the petitioners were deferred on the question of their "integrity" and "reputation". It is also evident that while making such observations the competent Authority has not given due consideration to the. ACRs of the petitioners relating to the said period. This act of the Authority was against the dictum laid down by the august Supreme Court of Pakis tan in the case of Syed Iftikhar Hussain Shah and others v. Governme nt of Pakistan and others (supra). Even otherwise the observations of the competent Authority in both the decisions/letters are found to be contrary to the evaluation and remarks of the Reporting /Officer made in the Performa nce Evaluation Reports (PERs/ACRs) of the petitioners. In the ACR of petitioner No. 1/Nasir Mahmood for the period from 25.3.2014 to 22.6.2014 in Part-II regarding Performance Assessment the Reporting Of ficer has assessed him in the following words: "He has very ef ficiently performed his duties"
In Part III of the said ACR he has throug hout been rated in "A". In Part-IV (pen-picture) he earned the following remarks: "Work, conduct and integrity remained satisfactory , always well prepared, well performed before the courts. He is fit to be promoted on its own turn."
In Part V he has been reported "Very Good" against "Overall Grading". In Part-V(b) he has been reported "Honest".
The countersigning officer has agreed with the evaluation and, remarks of the Reporting Officer. Same is the position in his ACR for the period from 23.6.2014 to 24.9.2014. In the ACR for the period 1.1.2014 to 10.6.2014 his integrity , work and conduct was found to be satisfactory by the Reporting Officer and the countersigning officer. In the ACR for the period 23.6.2014 to 31.12.2014 he was rated in "A". In the column of "Integrity" he was found to be "Honest". ACRs of petitioner No.1 for the period from 1.1.2015 to 21.4.2015 and 22.4.2015 to 31.12.2015 are also rated "very good". His "work", "conduct" kind "integrity" have been found good. He has not earned any "adverse" or even "advisory remarks" from the Reporting Officer. Same is the position of petitioner No.2/Zulfiqar Ali Mujahid. He has earned good ACRs during the period from 1.1.2014 ' to 22.6.2014, 25.3.2014 to 22.6.2014, 23.6.2014 to 24.9.2014, 23.6.2014 to 31.12.2014, 11.1.2015 to 15.6.2015 and 16.6.2015 to 31.12.2015. Keeping in view the record of PERs of the petitioners this Court is of the opinion that there existed no valid and legal ground or reason to defer the case of the petitioners for promotion. The order of this Court dated 4.4.2017 passed in W P. No. 17377/2016 titled Muhammad Aftab Zafar v. Secretary Prosecution, Public Prosecution Deportment Government of Punjab Lahore and others has also been relied upon by learned counsel for the petitioners in support of their case by arguing that case of the petitioners is identical to the case of the petitioners in the cited case. In the cited case the writ petition of the petitioners was disposed of with a direction to the respondents to place their case before the PSB for reconsideration and passing appropriate orders. I have perused the order dated 4.4.2017 passed in the cited case, I am of the view that case of the present petitioners is on better footings as compared to the 'case of the petitioner in the cited case. In the said case the petitioner was awarded minor penalty of withholding of increment for one year and his appeal was also rejected by the Appellate Authority . The petitioners are thus entitled to the same relief as has been granted to the similarly placed employee of the same department.
In the circumstances, this Court is inclined to hold that cases of the petitioner were deferred for promotion without any lawful justification therefore, they are entitled to be re-considered for promotion. Reliance in this regard is placed on the case of Director General Intelligence Bureau, Islamabad and others v. Amir Mujahid Khan and others (2010 PLC (C. S.) 946).
8. In the light of above, this petition is allowed and the respondents are directed to consider the case of the petitioners for promotion from the date of their deferment for promotion in the next meeting of PSB to be convened within a month from the date of receipt of copy of this order .