The petitioner was promoted to the post of Superintendent Engineer (BPS-19) in the year 2014 and his working paper was prepared for further promotion to the post of Chief Engineer, BPS-20 in the year 2020. However, due to the lethargic attitude of the respondent department, his case for consideration for the promotion was not placed before the Provincial Selection Board-II, though his name appeared at Serial No.1 in the seniority list. The petitioner being aggrieved by and dissatisfied with the inaction on the part of respondents filed a representation before the competent authority which was accepted vide endorsement of the competent authority dated 1.1.2020, unfortunately, the respondents failed to implement the directives of the competent authority, and left the petitioner in the lurch. Finally, the petitioner stood retired from the Government service in BPS-19 on attaining the age of superannuation on 14.1.2020.
2. Learned AAG has taken the plea that Provincial Selection Board took the decision on 23.9.2019 and recommended four candidates for promotion to the post of Chief Engineer (BPS-20) against four vacancies, however, the petitioner was at serial No. 5 and the same was notified on 21.10.2019.
Per learned AAG, the endorsement of the competent authority was conveyed to respondent No.4, however, he retired from 'government service on 14.1.2020, therefore, no action was taken. On the point' of the working paper, he submitted that the name of the petitioner was not included in the penal of officers for promotion on the premise that he was already retired on 14.1.2020, however, he admitted that in compliance with orders of the Hon'ble Supreme Court, the Provincial Selection Board unanimously decided to grant proforma promotion of general cadre doctors (male) from BPS-19 to BPS-20, who have retired from government service on attaining the age of superannuation on or after 07.8.2015 up to 16.11.2017 and only those who arc qualifying would be clear for proforma promotion one day before the date of their retirement. He prayed for dismissal of the instant petition.
We have heard the learned counsel for the parties and have also gone through the record of the case.
4. The act of non-placing the case of the petitioner for promotion in time is inaction and disregard of the Promotion Policy on the part of the Respondent Department and the Petitioner cannot be deprived of his right of promotion having been placed at Serial No. 1 in the seniority list; due to such a fault rested solely on the shoulders of the department.
5. It is settled law that where the law requires an act to be done in a particular manner, it ought to be done in that manner alone, and such a dictate of law cannot be termed as a technicality.
Reliance has been placed on Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255).
6. The above act of the Respondent department has not only deprived the Petitioner of his vested right to be considered for a promotion but it has also caused him the permanent loss of pensionary benefit of higher grade and he cannot be made to suffer on account of the departmental lapse. The Honorable Supreme Court of Pakistan in the case of Secretary Schools of Education and others v. Rana Arshad Khan and others (2012 SCMR 126) while granting proforma promotion to retired civil servant held as under:- "Much before the retirement of the respondents, a working paper was prepared by the department with regard to their promotion but the matter was delayed without any justifiable reason and in the meanwhile, respondents attained the age of superannuation. They cannot be made to suffer on account of the departmental lapse."
7. It is a settled principle of law that if service, benefits have accrued w an employee but for one reason or the other such benefits could not be awarded to such an employee, then, irrespective of the fact of his/her having retired from service, the department concerned shall still have to further consider her/his case for such a promotion and to allow him/her benefits of such a promotion, even after retirement from service.
8. Promotion is generally advancement in rank, which is granted based on acquiring extra qualifications or enhancement of skills or awarded in lieu of longstanding services of the employee as a token of satisfaction and appreciation over services rendered by him. The concept of Proforma Promotion is to remedy the loss sustained by an employee/civil servant on account of denial of promotion upon his legitimate turn due to any reason but not a fault of his own and in cases where a temporary embargo was created against his right for such promotion or a legal restraint was posed against his claim owing to any departmental proceedings inquiry etc. against him and the said obstacle is done away with ultimately then in such a situation, his monetary loss and loss of rank is remedied through proforma promotion.
9. The Honorable Supreme Court in the case of Regarding Putting of Two Government Officers Namely Hasan Waseem Afzal and his Wife Farkhanda Waseem Afzal as OSD (2013 SCMR 1150), also held that the civil servants who were not promoted for want of required PERs because of their posting as OSD was not an act of their own doing and thus could not be left to suffer for the very reason. It was observed that: "Their promotion to the next higher, the scale has been denied for want of PERs and PERs have not been complied on account of their posting as OSDs which is not an act of their own doing.
"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 fade appears to have been denied to them out of indignation and ill will of the high ups."
10. No doubt promotion is not the vested right of a civil servant but where he is fully qualified for the promotion and there is no tangible clog in his service record, he has a right to expect that his case will be considered for promotion under law, rules, regulations and eligibility criteria/policy formulated for regulating promotion by the Government. Any breach or deviation therefrom for mala fide reasons or due to arbitrary act of his superiors or peers or the competent authority is not warranted in law.
11. In view of the position explained above it is to conclude that a civil servant has a fundamental right to be promoted even after his retirement through awarding pro forma promotion provided his right of promotion accrued during his service and his case for promotion could not be considered for promotion for no fault of his own and he is retired on attaining the age of superannuation without any shortcoming on his part of deficiency in the length of service or the form of inquiry and departmental action was so taken against his right of promotion.
12. The Petitioner was otherwise eligible and qualified to be considered for grant of promotion in the year 2020 and he cannot be penalized for departmental lapses and negligence on their part regarding non-placing his case for promotion till retirement of the Petitioner, which was otherwise obligatory upon them. The Petitioner cannot be made to suffer on account of inaction, omission, or negligence on the part of the Respondent's department. The Hon'ble Supreme Court vide order dated 31.3.2018 in Criminal Original Petition No. 15-K of 2016 has already directed to grant proforma promotion to the Doctors, who were qualified and had the requisite length of service and in principle, the case of the petitioner is akin to the case decided by the Hon'ble Supreme Court.
Besides that, the competent authority had already directed the respondent department to grant the petitioner promotion by circulation on 01.1.2020 before his retirement and the working paper for promotion was already in pipeline being on top of the seniority list as per the working paper (available on page 45 of the Court file). Prima facie, the juniors of the petitioner have been promoted and the petitioner has been ignored for the reason that there were four clear vacancies and one vacancy was reserved for a future vacancy. This attitude of the respondents negates the basic spirit of the law and violates Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. The record reflects that another candidate was recommended for promotion on the resultant vacancy and the petitioner was allowed to retire on 14.1.2020. If this is the position of the case, we have no option, but to hold that the petitioner has not been treated under the law by the respondents.
13. In view of what has been discussed above, the instant petition is allowed. The matter is remanded to the competent authority of Respondents to award the petitioner proforma promotion in BPS-20 by way of Circulation within one week.
Let a copy of this order be communicated to the Chief Secretary Sindh and respondents for compliance in time.