"Let them suffer" may be a command of expediency but we cannot approve it when, "give them their due" is a command of justice, which prima facie appears to have been denied to them out of indignation." {{(Per Justice Ejaz Afzal Khan in 2013 SCMR 1150)}} MUHAMMAD SHAN GUL, J. Through this judgment the titled constitutional petition is sought to be decided.
2. The petitioner is a civil servant working in the Excise & Taxation Department, Province of Punjab, who has been denied, and deferred for, promotion, on the pretext that a minor penalty of withholding of increments for two years was imposed on him. An order dated 02.11.2021 has, therefore, been brought under challenge.
3. Since the matter evidently as also in actual fact relates to the question of fitness of a civil servant to be promoted to a higher post and not his eligibility this Court has, and therefore is, exercising jurisdiction available to it in terms of Article 199 of the Constitution and acknowledged tacitly by Section 4(1) (b) of the Punjab Civil Servants Act, 1974. Had the question involved in the matter been about the petitioner's placement on the seniority ladder for the purpose of being considered for promotion or about his years of experience in a particular post so as to be eligible for consideration or if the petitioner lacked any essential eligibility factor this Court mindful of the law laid down in {{"Muhammad Anis and others v. Abdul Haseeb and others" (PLD 1994 SC 539)}} would not have exercised jurisdiction. However, this is not the case here!
4. Learned counsel for the petitioner submits that not only that the pretext prevailing with the Provincial Selection Board ("PSB") in denying promotion to the petitioner is incorrect and erroneous but also that the Provincial Selection Board has reinforced its earlier indiscretion exercised one year back when it had deferred the petitioner for promotion on the very lame pretext of his Performance Evaluation Reports not being available. Learned counsel for the petitioner submits that while the petitioner did not lay a challenge to such denial of promotion and exhibited patience, this time round, the Provincial Selection Board has again exploited the petitioner, denied him his due, done so on a basis which is erroneous and not recognized in law and it is, therefore, that in order to protect his right to be considered for promotion that the petitioner has been compelled to approach this Court. Learned counsel for the petitioner submits that the reasons prevailing with the Provincial Selection Board in denying promotion to the petitioner for the second time are bad in law and should be declared so. Adds that the factor of minor penalty, which, too, has been brought under challenge by means of an appropriate appeal, in being taken as a pretext to deny promotion is illegal both jurisprudentially as also logically.
5. Facts in a nutshell are that the petitioner was appointed in the Excise & Taxation Department as an Excise & Taxation Officer in BPS-17 on 24.2.1998. He was subsequently promoted to BPS-18. The post of a Director in the Excise & Taxation Department has to be filled by promotion on the basis of selection on merit from amongst BPS-18 officials having 12 years service in BPS-17. It is in this scenario that the case of the petitioner for being considered for promotion to BPS-19 was sent to respondent No.5, Secretary Regulations, Services & General Administration Department. In the first meeting relevant to the case of the petitioner dated 14.9.2020 the case of the petitioner was deferred for promotion on account of the pendency of a departmental inquiry against him. In terms of the law laid down in {{"Maj. Ziaul Hassan, Home Secretary and others v. Mrs. Naseem Chaudhry" (2000 SCMR 645),}} {{"Muhammad Ayaz Khan v. Government of Sindh and others"
(2007 PLC (CS) 716),}} {{"Nazeer-ud-Din v. Government of Pakistan through Secretary, Passport and Immigration Department and others" (2017 PLC (CS) 578)}} and {{[A.P. Naidu vs. General Manager, South Central] Andhra Pradesh High Court (1983) ILLJ 151}}: "When disciplinary proceedings are initiated and when they are yet to be completed, there is no knowing whether the petitioner can be found to be guilty of the charges that may be framed against him and he cannot before then be punished through either withholding of his promotion or by non-consideration of his case for promotion. In either case, it amounts to imposition of punishment violating both the letter and spirit of the Constitution. Therefore, the pendency or contemplated initiation of the disciplinary proceedings against a person must be considered to have absolutely no impact upon his right for being considered for promotion."
6. A passing reference in the denial noting dated 14.9.2020 was also made to incomplete service record of the petitioner. This premise is as bad and erroneous as the first one and has no basis in law because it is the duty of the Administrative Department to get prepared Performance Evaluation Reports and to keep and maintain the same so that the same could be used at the time of consideration of the concerned official for promotion. Kindly see {{"Secretary, Revenue Division and others v. Muhammad Saleem" (2008 SCMR 948),}} {{2007 PLC (CS) Note 9 (not found)}} and {{"Liaquat Ali Khan and others v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and 2 others" (2020 PLC (CS) 826).}}
7. Even when this decision was illegal and against trite jurisprudence mentioned above, the petitioner in line with the permanence and anonymity ethos of civil service exhibited exemplary patience, stayed put and did not challenge its findings because he was assured by the Regulations Wing that in a matter of months his case shall again be placed before the Provincial Selection Board.
8. This petition was admitted to regular hearing and the respondents were put on notice. According to the reply submitted by the respondent, the pretext and premise employed and adopted by the Provincial Selection Board has been reinforced and but for equally erroneous rhetoric based on an incorrect and misunderstood appreciation of law, the respondents have nothing else to offer.
9. I have heard the learned counsel for the petitioner as also the learned AAG assisted by the Departmental Representative in the matter.
10. It may be added here that the right of a civil servant to be considered for promotion contemplated by the Punjab Civil Servants Act, 1974 is neither illusory nor a perfunctory ritual and withholding of promotion is considered a major penalty in terms of the Governments Servants (Efficiency & Discipline) Rules, 1973. Also, denying promotion to a civil servant amounts to punishment and no punishment can be imposed without any inquiry and without affording the affectee an opportunity of showing cause against the same. None of the above was even remotely thought of and, therefore, an illegality was allowed to be perpetuated. The twin erroneous basis for rejection only heightens and accentuates the aspect of poor due diligence.
11. This time round the case of the petitioner was placed before the Provincial Selection Board on 02.10.2021 and the petitioner was deferred for promotion on account of the erroneous belief that the petitioner had been awarded a minor penalty of withholding of increments for two years. What is very interesting in this context is that the name of the petitioner figures at Sr. No.1 in the list of seniority. The decision of the Provincial Selection Board pertaining to the petitioner reads as follows:- "The Board examined the service record, posting profile, and general reputation of the officer in detail. The Board was apprised that in the recent past, the officer was awarded minor penalty of "withholding of increment for two year" vide order dated 22.03.2021. The Board in its collective wisdom observed that the officer did not have a competitive advantage as compared to his other peers.
Therefore, the officer is deferred for promotion to the post of Director Excise & Taxation (BS-19) with the observation Special Report specifying whether the officer has achieved objectives/targets to be fixed by the Department or otherwise may be sought over and above his PER for the same period."
12. While this rejection on the face of it is violative of the law laid down in {{"Deputy Inspector General of Police, Gujranwala and others v. Anwar Saeed, Inspector Police and others" (1998 SCMR 552)}} and {{"Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others" (1991 SCMR 1637)}} and similar other precedent cases, what is equally objectionable is the irrelevant consideration weighing with the Provincial Selection Board in deferring the case of the petitioner and which consideration is entirely gratuitous, outrightly unwarranted and, therefore, inexact. The observation that his performance may be monitored for one year and a special report over and above his Performance Evaluation Report be made available is, to say the least, absolutely misdirected, misaimed and a clear case of the decision-maker being dictated by an improper motive and an absolutely irrelevant consideration. This observation borders on being wednesbury unreasonable inasmuch as the decision-maker has not directed his attention to the correct question and has allowed itself to be influenced by an extraneous consideration.
13. It may also not be out of place to state here that this observation is also invidious because in the case of all others who have been considered for promotion and who have been promoted or deferred no such additional requirement has been imposed and the same has only been brought to bear on the proceedings of the case of the petitioner. It may be safely stated here that this observation is not only outrightly erroneous but also reflective of there being more in the matter than meets the eye. On this count, the decision of the Provincial Selection Board with reference to the petitioner, reeks of malice and seems to be rooted in ulteriors.
14. While this Court is mindful that it cannot substitute its own opinion for that of the competent authority in the matter of determination of fitness for promotion because the law vests the authority in this respect in the Executive Branch of the Government but through the medium of judicial review the role of this Court is to ensure that the intent of the law maker as contained in a statute is stimulated and upheld. Hence, whenever an Executive Authority transgresses its legal limits, operates in a manner not recognized by law or for that matter deplored by law or even when a competent authority acts in a manner derogatory to trite and declared case law, this Court through the medium of judicial review can order for the correction of such an approach so as to put things back on an even keel. Hence, the present decision should be viewed in this context.
15. The imposition of minor penalty has never been held to be a legally recognized ground to defer a civil servant for promotion. In terms of the law laid down in "Muhammad Yasin v. Secretary, Government of Punjab and others" (2007 SCMR 1769),}} {{"Mrs. Sanjida Irshad, Assistant Director, Nursing, Bahawalpur v. Secretary to Government of the Punjab Health Department, Lahore and others" (2008 PLC (CS) 1019)}} and {{"Abdul Rauf v. Government of the Punjab through Secretary (Food), Civil Secretariat, Lahore and another" (2016 PLC (CS) 1099)}} minor penalty is not an obstacle in the way of a civil servant from being promoted.
16. In the case of {{"Deputy Inspector General of Police, Gujranwala and others v. Anwar Saeed, Inspector Police and others" (1998 SCMR 552)}} the Hon'ble Supreme Court of Pakistan has looked down upon the rejection of promotion in respect of a civil servant on the ground of imposition of minor penalty.
17.That, likewise, in the case reported as {{"Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others" (1991 SCMR 1637)}}, again, the Hon'ble Supreme Court of Pakistan approved and upheld a decision of this Court in which reliance of the Executive Branch of the Government on a minor penalty for the purpose of rejecting a case for promotion was looked down upon and discarded since in the opinion of the Hon'ble Apex Court minor penalties could not stand in the way of a civil servant from being considered for promotion.
18. In {{"Muhammad Afzal Khan v. Government of Punjab through Secretary to Government of the Punjab, C&W Department and another" (2009 PLC (CS) 40)}}, this Court declared the basis of imposition of minor penalty as a ground for rejection of a case for promotion to be illegal.
19. Again in {{"Mian Ali Muhammad v. Secretary, Establishment Division, Government of Pakistan and 3 others" (2003 PLC (CS) 1425)}} this Court reiterated the trite position of law that minor penalty could not stand in the way of a civil servant from being promoted. However, one of the classic judgments on the present subject is the one reported as {{"Sh. Muhammad Riaz v.
Government of the Punjab through Secretary, Communication and Works and another" (2003 PLC (CS) 1496)}} in which a Single Bench of this Court put to rest all misgivings entertained by the Executive about treating the imposition of minor penalty as a ground for rejecting a case for promotion. The late Justice Syed Jamshed Ali Shah, an expert in administrative and service law matters, lucidly held in the case reported as {{"Sh. Muhammad Riaz v. Government of the Punjab through Secretary, Communication and Works and another" (2003 PLC (CS) 1496)}} that, "12. What remains to the discredit of the petitioner is the minor penalty of 'censure'. I may however, observe that in {{Ch. Yar Muhammad Duriana v. Government of the Punjab and another (1992 PLC (C.S.) 95)}} decided on 25-11-1990) promotion was declined to a civil servant on the basis of a minor penalty of "censure". This Court interfered in the matter and the judgment of this Court was affirmed by the Hon'able Supreme Court in the case of Captain Sarfraz Ahmad Mufti supra (decided on 14-4-1991). It may be clarified that a minor penalty, standing by itself, cannot be considered as a disqualifying factor and this so emerges from the instructions of the S&GAD Department contained in the Letter No.SOIV (S&GAD) 1-75/ 67(Policy), dated 7-1-1969 (O&M I O Establishment Manual Volume-II (Revised) 1974 Edition (pages 123-124) in the following words:-- "(c) If the Appointing Authority has passed an order under rule 6 (ii) of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, that formal enquiry should be held and has decided that the allegations, established would call fora major penalty.
If the Authority is of the view that the allegations, if established, would call for a minor penalty, then such an enquiry may be ignored for the purpose of withholding of promotion of a person, who is otherwise suitable for it." (emphasis supplied)
I may add that, in fact, withholding of promotion of a civil servant only on the basis of a solitary penalty of censure attracts the rule of double jeopardy because a civil servant who commits an actionable wrong cannot again be punished for the same wrong for which he had already been punished."
20. Even in neighboring India the pretext of a minor punishment so as to refuse promotion has been looked down upon and deprecated: {{(2008 (5) MLJ 350 Subramanian v. Government of Tamil Nadu (Madras High Court):}} According to him, it was only a minor punishment and hence, the petitioner could not be denied promotion and the said punishment would not stand in the way of giving promotion to the petitioner, while considering his service record from 1985 onwards. The petitioner was admittedly imposed punishment of stoppage of increment for two years without cumulative effect, as per G.O.(2D) No.49, dated 16.10.2000. As contended by the learned counsel for the petitioner, it could be construed only as a minor punishment and solely based on the same, he could not be denied further promotion. {{"AIR 2010 SC 1884 (Supreme Court of India) Jagat Narain v. Food Corporation of India & others":}} 6.....Therefore, having regard to the circulars dated 13.12.2001 and 19.12.2001, neither the pendency of minor penalty proceedings nor the imposition of minor penalty by way of recovery of Rs. 5000/- would come in the way of the employee being considered for promotion or being promoted. It therefore, follows that there was no justification for cancelling the said promotion dated 24.1.2005.
21. In this view of the matter, order dated 02.11.2021 is set aside and declared to be of no legal effect.
The Provincial Selection Board is directed to reconsider the case of the petitioner in line with what has been observed in the preceding narrative.
22. Allowed in the above terms.