MUHAMMAD IJAZ KHAN, J.- Through the instant writ petition, petitioner has prayed for the following relief:- "It is, therefore, very respectfully prayed that the respondents may be directed to convene the meeting of PSB for the consideration of the case of the petitioner for his notional promotion from the due date so that he may get the benefits of his retirement in BPS-20.
Any other relief deemed appropriate in the circumstances and not specifically prayed for may also very kindly be granted."
2. Precisely, the facts of the case are that the petitioner was appointed as Lecturer in Education.
Department vide _appointment order dated 19.10.1988 and due to his satisfactory performance, he was promoted to the post of Associate Professor (Physics). However, his case is that in the year 2019, he completed the mandatory training (HESG III Course No. 06 at HEART, Peshawar) for promotion from BPS-19 to BPS-20 and, being eligible for promotion, he was kept on waiting but no meeting of the Departmental Promotion Committee was held by the respondents-department and as such, he has got retired from service on 07.05.2021. It pleaded by the petitioner that later on, the process of promotion from BPS-19 to BPS-20 was taken up by the respondents-department, wherein his juniors were promoted vide Notification dated 31.05.2022, however, petitioner was not considered for promotion, as such, he has approached to this Court for issuance of appropriate writ against the respondents-department.
3. When this case was taken up for hearing, notices were issued to respondents No. 3 and 4 and they were directed to submit their parawise comments, which they have accordingly submitted.
4. Arguments of learned counsel for the petitioner as well as the learned A.A.G representing the respondents were heard in detail and the record perused with their able assistance.
5. Precisely, the grievance of the etitioner is that though by now, he has retired from service, however, he is entitled for the grant of notional promotion on the ground that when he was in service, his case for promotion was considered by the Provincial Selection Board ("PSB"), in its meeting held on 12.06.2020 but the said process could not be taken to its logical conclusion due to some decision of the Provincial Government, whereby the retirement age limit was increased from 60 to 63 years, which was later on decided by this Court as well as by the apex Court and even the relevant legislation was also made. The respondents No. 3 and 4, in their comments, have admitted the aforesaid factual position of the case to the effect that at the relevant time, the petitioner was performing his duty as Associate Professor in BPS-19, when his case for promotion to the post of Professor (BPS-20) was considered in the said PSB meeting dated 12.06.2020, however, due to the aforesaid circumstances, the petitioner could not be promoted and thereafter, he has retired from service.
6. In view of the above admitted factual position, when during the service tenure of the Petitioner, his case for promotion from the post of Associate Professor (BPS-19) to the post of Professor (BPS- 20) was processed and it was duly considered by the PSB in its meeting held on 12.06.2020 and the Court was informed that after retirement of the petitioner, his juniors have been promoted, then in such eventuality, the petitioner is having a right to be considered for notional promotion as in the given facts and circumstances, no fault could be attributed to the present petitioner and the fault qua delay in conclusion of the promotion process lay with the respondents.
7. It may be reiterated that by now, it is an established jurisprudence that an employee cannot claim promotion to a high post as a matter of right but when once the process is initiated by the department itself, then such employee has every right to be treated an accordance with law. It is relevant to mention here that this is admitted position that the petitioner's case for promotion was processed before his retirement and was considered by the PO, however, the said process was delayed due to some uncertainty as highlighted hereinabove, and in the meanwhile, he has got retired from service and when on the basis of the aforesaid process, his juniors have also been granted promotion, then the petitioner has a legitimate right to be considered for notional promotion. In a similar and akin situation, the apex Court while rendering its judgment in the case of Secretary Agriculture, Livestock and Cooperation Department, Peshawar and others v. Anees Ahmad reported as 2021 SCMR 1266, has held that in the present case the DPC has not considered the case for promotion of respondent and the reason assigned is that he has retired. This reason given by the DPC, apparently, is no reason in law, in that, once the Model Working Paper for promotion of respondent was placed before the DPC, it was incumbent upon it to have considered and decided the same, for that, though the law does not confer any vested right to a government servant to grant of promotion but the government servant surely has a right in law to be considered for grant of promotion. It is because of the department's own non-vigilance and the DPC being insensitive to the employees who were on the verge of retirement of which the employees could not be made responsible, cannot simply brush aside the case of an employee by merely saying that he has retired. Once the case of respondent has matured for promotion while in service and placed before the DPC before retirement, it was incumbent upon the DPC to fairly, justly and honestly consider his case and then pass an order of granting promotion and in case it does not grant promotion, to give reasons for the same. This was not done by the DPC and in our view such was a miscarriage of justice to respondent. Similarly, in the case of Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others v. Hizibullah Khan and another reported as 2021 SCMR 1281, it was observed that in presence of the rules, the department's response that his case has been kept pending till finalization of new service rules, was ex facie illegal and also unjustified. When matter of promotion is placed before the DPC, the DPC is required by law to consider the case of the employee put up for promotion and in doing so, it has to consider the case of employee for promotion fairly, justly and honestly.
8. During the course of arguments, the learned A.A.G raised an objection regarding the maintainability of this writ petition on the ground that petitioner was a civil servant and the issue agitated before this Court pertains to the terms and conditions of his service, however, in rebuttal, the learned counsel representing the petitioner submitted that petitioner is only seeking a direction in the form of mandamus to the PSB concern to consider his case of promotion and in support of his contention, he also made reference to the judgment of the apex Court rendered in the case of Secretary, Revenue Division and others v. Muhammad Saleem reported as 2008 SCMR 948. In the said case, it has been observed that each and every order/direction issued by the Superior Courts cannot be presumed and assumed to be in contravention of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, because the inherent and other powers and jurisdictions, conferred by, law and Constitution, can be restrained to be exercised when the matter/case is shown to have fallen within the domain and scope of prohibition. The jurisdictions vested with the apex and Superior Courts are general, wider in scope and extent while the constraints/prohibitions are narrower in their applications, and dimensions.
Jurisdiction of Superior Courts are to be stretched to take into its fold all the disputes to be resolved while limitation of jurisdictions and powers are to be squeezed and kept to the minimum extent and length.
In view of the above, this writ petition is allowed and the respondents are directed to place the case of the petitioner before the ensuing PSB meeting to consider the grant of desired notional promotion to the petitioner in accordance with law.