IJAZ ANWAR, J. This writ petition is filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:- "It is, therefore, most humbly prayed that on acceptance of this writ petition, an appropriate writ may please be issued:
1. To declare the acts and conducts of the respondents in respect of violating the promotion quota since 01.10.2001 while posted on the post of Personal Secretary to Director General, Pakistan Academy for Rural Development Peshawar BPS-17 on deputation basis from the office of NIPA and the vested, lawful and legal rights of the petitioner has blatantly been violated, and they had tried to deprive the petitioner from his vested right of seniority through unlawful means and to favour the employee of other department, which is illegal, unlawful, without lawful authority, against the rules, void ab-initio in the eyes of law and of no legal effects upon the rights of the petitioner.
2. To declare that the petitioner under the relevant rules of the respondents department was having the requisite length of service and was entitled for the promotion to the post of PS to DG BPS-17 w.e.f. 01.10.2001, as the same post was lying vacant, however, the petitioner was ignored from promotion and issued his promotion order w.e.f 20.05.2020, rather to consider his seniority w.e.f 01.10.2001, these acts of the respondents are illegal, unlawful without lawful authority and the petitioner is entitled to give effect his antedated/proforma promotion from 01.10.2001 and accordingly, the benefits with mutatis mutandus be issued in favour of the petitioner w.e.f 01.10.2001 as proforma promotion.
3. Any other relief not specifically asked for may also graciously be extended in favour of the petitioner in the circumstances of the case".
2. In essence, the petitioner was initially appointed against the post of Steno Typist (BPS-12) in the year, 1987 and later, his post was upgraded to BPS-15. In the year, 2011, the post of Personal Secretary to Director General was vacant on the retirement of its incumbent and the names of the senior most Stenographers were put forwarded for promotion to the post of Personal Secretary to Director General, however, the senior most Stenographers namely Habib-ur-Rehman and Muhammad Roz have submitted their written consent to forego the promotion; as such, the case of the petitioner for promotion was placed before the competent authority, however, his case was not considered and one namely Muhammad Azam was transferred on deputation basis on the subject post. Later the said official was repatriated to his parent department i.e. NIPA. Thereafter, the petitioner repeatedly submitted applications for consideration for his promotion, however, the same were not considered and not responded. It was only on 12.06.2020 that he was promoted to the post of Personal Secretary to Director General but with immediate effect. He thereafter submitted application for his consideration for promotion with effect from 21.11.2001, the date when he became eligible for promotion, however, it was not considered. Hence, this writ petition.
3. Comments were called from the respondents who furnished the same wherein, they opposed the issuance of desired writ asked for by the petitioner.
4. Arguments heard. Record perused.
5. The petitioner has served the respondent Academy and retired from service vide Office Order dated 05.08.2022 w.e.f. 31.08.2022 as Personal Secretary to Director General (BS-17). He claimed promotion with effect from the year, 2001 when he was the only eligible candidate for promotion.
6. The recruitment rules, attached with the writ petition, provide the following criteria for promotion:- Name of PostAppointing AuthorityMinimum QualificationMethod of recruitmentAge for Direct Recruitment P.S to Director B-16DirectorMatriculate Professional experience Shorthand 100 W.P.M Typing 45 W.P.MPromotion21-35
7. It is pertinent to mention here that promotion is the only mode on the basis of which the post of Personal Secretary to Director General was to be filled in. Subsequently, the recruitment rules were further amended in the year, 2020, however, the criteria mainly remained the same. It is reproduced as under:- Name of PostAppointing AuthorityMinimum QualificationMethod of recruitmentAge for Direct RecruitmentAmendment s P.S to Director General B-17Director GeneralHigh proficiency in Shorthand.
Some experience in record keeping.
3. Experience of operating computer.By selection From amongst The Stenographers of the Academy at the discretion of the Director General21-35100% by promotion Persons eligible APS B-16 Length of Service 7 years service in B 16 Unified recruitment rules of the post.
8. We have noted that the post of Personal Secretary to Director General (BS-16) was vacant since 01.10.2001 in view of the retirement of its incumbent. At the relevant time, petitioner was at S.No.3 among the Senior Scale Stenographers (BS-16). He was holding the post of Stenographer (BS-15) at the relevant time. The senior most Stenographers namely Habib-ur-Rehman and Muhammad Roz have given written consent to forego the promotion, however, instead of filling the post by promotion, this post was filled in through deputation and one Muhammad Azam was posted/ transferred as Personal Secretary to Director General w.e.f. 01.01.2002. Later the officer namely Muhammad Roz, who has earlier given written consent of foregoing the promotion, was promoted as Personal Secretary to Director General w.e.f. 23.06.2004. We have further noted that the officer namely Muhammad Roz stood retired from service w.e.f. 06.02.2015 and at the relevant time, the petitioner was on the top of the seniority list, however, he was not allowed promotion and on his repeated representations, ultimately, vide office order dated 12.06.2020, he was allowed promotion as Personal Secretary to Director General (BS-17) with immediate effect. Interestingly, the record, placed on file, transpires that the promotion case of the petitioner was not processed in time on the only ground that he has failed to appear in the shorthand proficiency test, however, the record speaks otherwise, because, even in the note sheets pertaining to the year, 2001, placed on file, transpire that his case was duly forwarded for his promotion by the Department with the following recommendations.
"Mr. Muhammad Idrees has joined the Academy on 14.01.1987 as Steno-Typist (BS-12) and presently working as Stenographer (BS-15). He is having education of double M.A i.e. M.A (Political Science) and M.A (Islamiyat) alongwith computer courses. According to record, there is nothing against Mr. Muhammad Idrees and he is efficient, experienced Stenographer. His ACRs are found very good to good. Thus, he is fit for promotion to the post of P.S. to Director General".
9. Similarly, regarding his proficiency, the note, put up for his promotion dated 25.05.2018, shows that "shorthand proficiency of Mr. Idrees is good. I used to give him dictation and found him up to the mark. If agreed, his shorthand test may be taken under the direct supervision of P.S. to Director General" and even subsequently, after the test, when he was found eligible, his case was duly forwarded for promotion. The reason for delay in his promotion was that in the year, 2016, his promotion was withheld and that he has never appeared in the shorthand proficiency test and thus, allegedly his promotion case was delayed till the year, 2020.
10. We have before us the synopsis of the ACRs of the petitioner since the year, 1987 till the year, 2019. Till the year, 2001, he was mostly rated as 'good' in 'overall grading' and in the column of 'fitness for promotion' as 'fit for promotion' and for the year, 1999, 2000 and 2001, he was rated as 'recommended for accelerated promotion' while from the year, 2002 till 2019, except on three occasions where he was rated as 'good', for the remaining period, the overall grading of the petitioner is 'very good' and throughout either is declared as 'fit for promotion' or 'recommended for accelerated promotion'. It thus appears that while drafting the comments, fair assessment of the work and conduct of the petitioner has not been made and the comments submitted are contrary to the service record of the petitioner.
11. As noted above, the petitioner was very much fit and eligible for promotion in the year, 2001 but was not considered and the post of Personal Secretary to Director General was filled in through deputation which legally was not permissible under the law, albeit, since it was not questioned in time, as such, no decision pertaining to that order can be taken. Even otherwise, when lately one Muhammad Roz was promoted in the year, 2004 who retired from service in the year, 2015, still the case of the petitioner was not processed in accordance with law.
12. We are thus of the considered view that in the year, 2001, when the petitioner was the only eligible candidate and was recommended for promotion but deprived illegally by filling the post of Personal Secretary to Director General through deputation and again when his immediate senior namely Muhammad Roz who subsequently opted for promotion and was allowed promotion and retired from service in the year, 2015 but unnecessarily delaying the promotion of the petitioner for long five years is in fact violative of his vested rights which he has matured by dent of his service record, seniority and consistent recommendations for his promotion by his immediate officers.
13. The Hon'ble Supreme Court of Pakistan in the case titled "Syed Sultan Shah Vs. Government of Baluchistan and another (1985 SCMR 1394)" held that "Civil servant, who for no fault of his own is wrongfully prevented from rendering service to State in higher post to which he is admittedly entitled, should be given salary for higher post". Similarly, in the case titled "Mrs. Aqeela Asgrar Ali and others Vs. Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118)", the Hon'ble Supreme Court of Pakistan held that "Proforma promotion from a date in retrospect would entitle civil servant to claim pay for the period that he was improperly denied his legal right of promotion". In the case titled "Khalid Mehmood Vs. Chief Secretary, Government of Punjab and others (2013 SCMR 544)", direction was issued for promotion of the officer with effect from the date when vacancy occurred.
14. Similarly, in the case titled "Askari Hasnain Vs. Secretary Establishment and others (2016 SCMR 871)", the Hon'ble Supreme Court of Pakistan directed for proforma promotion of a civil servant even after his retirement.
15. In view of the above, we hold that on the retirement of Muhammad Roz, Personal Secretary to Director General on 06.02.2015, the said post became vacant and as such, the necessary exercise for consideration for promotion of the petitioner should have been carried out urgently, albeit, having not done so, deprived him from the pay etc. of the higher post and thereby, was deprived of higher pay scale. Similarly, since the petitioner has ultimately promoted vide Office Order dated 12.06.2020, as such, we direct that he be allowed proforma promotion from the date of availability of the post of Personal Secretary to Director General i.e. 07.02.2015 with all arrears and back benefits.
16. This writ petition is allowed in the above terms.