IJAZ ANWAR, J. In essence, petitioner is serving as Director Investigation (BPS-20) in the respondent-NAB. He has challenged the deferment order dated 11.12.2024, whereby, the Selection Board has deferred his case for promotion on the ground of pendency of inquiry/departmental proceedings, besides, being a senior most officer, he also seeks his promotion to the post of Director General (BPS-21) from the due date with all back and consequential benefits.
2. Comments were called from the respondents, who submitted the same, wherein, they opposed the issuance of desired writ asked for by the petitioner.
3. Arguments heard and record perused.
4. Promotion cannot be claimed as of right, however, a civil servant/Government servant, eligible under the rules and on the top of the seniority list, has a right to be considered for promotion; similarly, we also agree with the contention that the Selection Board or the Departmental Selection Committee, while considering the eligible employees for promotion in the order of seniority, either recommends an employee for promotion or for supersession or defer consideration for promotion.
The Federal Government Policy notified vide Notification No.SR0120(I)/1998 dated 27.02.1998 duly mentioned the same while Rule 7 of the Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019 prescribed the conditions for deferment. Rule 7(e) of the Rules ibid provides that "if disciplinary or departmental proceedings are pending against the civil servant". Rule 3.24(3)(c)(ii) of the National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS) Rules, 2002 also provides for deferment of an employee in case "disciplinary or departmental proceedings are pending against the employee whose promotion case comes up for consideration before the Selection Board/Departmental Promotion Committee". Similarly, in the recent notified National Accountability Bureau's Employees (Service) Rules, 2025, repealing the earlier National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS)
Rules, 2002, Rule 6(5)(d) empowers the Selection Board or the Departmental Selection Committee to defer consideration for promotion. The purpose of reference to the above rules is that this is an acceptable mode for the departmental authorities when considering promotion cases.
5. In the instant case, under the National Accountability Bureau (NAB) Employees Terms and Conditions of Services (TCS) Rules, 2002, for filling the post of Director General (BPS-21), the following criteria is provided:- Nomenclature of PostBPS Persons eligible for promotionConditions Director General21 Director (BPS-20) 22 years service in BPS-17 and above or 17 years service in BPS-18 and above or 12 years service in BPS-17 and above or 5 years service in BPS-20.
While as per the final seniority list of Directors (BPS-20) of National Accountability Bureau (NAB)
2024, notified on 04.12.2024, the name of the petitioner finds its mention at S.No.2, having all the eligibility for the post of Director General (BPS-21). It happened so that vide Notification dated 11.05.2023, the Government of Pakistan, Cabinet Secretariat, Establishment Division, Islamabad posted respondent No.3 as Director General (BPS-21) in the National Accountability Bureau.
Petitioner, thereafter, submitted an application to the Chairman, National Accountability Bureau and also sought personal hearing. Letters dated 16.04.2025 and 25.04.2025, to this effect, are available on file. The misfortune started when petitioner submitted representation to the Chairman, National Accountability Bureau against the posting on deputation in the National Accountability Bureau at senior positions duly forwarded vide letter dated 17.10.2024.
6. It appears that the representation of the petitioner was not viewed good by the competent authority and he was served with a Charge Sheet vide letter dated 06.12.2024; simultaneously, appointing an Enquiry Officer and conveying him the statement of allegations. Similarly, on the said date, vide letter dated 06.12.2024, meeting of the Selection Board for consideration of promotion in BPS-21 was also convened for 10.12.2024. The Selection Board considered eligible officers and petitioner was conveyed Office Memorandum dated 11.12.2024, whereby, the Selection Board has recommended him for deferment on account of pendency of departmental proceedings. Similarly, during the pendency of this writ petition, again consideration for promotion to the post of Director General (BPS-21) was made and again petitioner was recommended for deferment and thus, different officers, juniors to him, were allowed promotions.
7. In the given circumstances, we are of the view that judicial review of the administrative action is necessary where there is apparent arbitrariness in actions of the respondents and officers/officials are punished for claiming rights and such requests are considered as misconduct by the authoritarian mindsets.
8. The apex Court, in an identical matter, held that "civil servant had not been promoted by superseding any senior officer to her, she was entitled to be promoted from the date her juniors were promoted and there was no valid reason not to consider her for the promotion. Mere fact that some disciplinary proceedings were pending against the civil servants was not a sufficient ground to disregard the order passed by the Supreme Court. Promotion of civil servant, however, would not debar the authorities to continue with the disciplinary proceedings against the civil servant, if any, justly, fairly and in accordance with law[1]".
Similarly, the Hon'ble Lahore High Court held that "pendency of disciplinary proceedings against a civil servant is no valid ground for not considering such civil servant for promotion[2].
The Hon'ble Lahore High Court (Multan Bench), in another judgment, held that "in addition, mere pendency of disciplinary proceedings against any person or even imposing of minor penalties could not debar the promotion of a civil servant. According to the respondents, only three show cause notices were issued to the petitioner but there is no allegation of the respondents that the petitioner was punished in any case. The promotion order of the petitioner was rescinded in light of policy of the department according to which mere issuance of three show cause notices could be made basis for deferment of promotion of any officer but the law speaks otherwise. It is settled law that the law has to take precedence over the policy. Since according to law, the petitioner's promotion could not be deferred merely on the basis of allegations contained in the show cause notices, the impugned notification was illegal and without any lawful authority, as such, it could not sustain. The epitome of whole discussion is that this writ petition involving matter pertaining to violation of law and having far reaching effects on service structure is maintainable. Nobody can be deprived from promotion merely on the basis of disciplinary proceedings or on account of minor penalties. The petitioner after having been promoted as DSP and his promotion order having been implemented could not be reverted to the post of Inspector without affording him, opportunity of defence. Therefore, this writ petition is allowed and the impugned order is set aside[3]".
Similarly, the Hon'ble Sindh High Court, while dealing with identical case, has observed that "it is a settled principle of law that promotion cannot be deferred on the ground of pendency of some disciplinary or departmental proceedings. It is held by the superior Courts that depriving an incumbent of his promotion merely on pendency of departmental or disciplinary proceedings is not a lawful ground, if otherwise he has fulfilled the criteria for consideration of the promotion....."A promotion cannot be deferred till such time the enquiry and/or disciplinary proceedings are finalized as a person is presumed to be innocent until found guilty. Pendency of inquiry and minor penalties could not come in way of promotion; enquiry proceedings pending against plaintiff for an indefinite period smacked of arbitrariness and mala fide and is a hanging sword on head of employees; such treatment could not sustain in eye of law to deprive the plaintiff of promotion. Pendency of inquiry was no ground for denying promotion to the employee and no one could be punished by denying promotion before establishing charge..[4]"
Similarly, the Hon'ble Sindh High Court (Hyderabad Bench) has also held that "it is well settled that mere issuance of letters of explanation or show-cause notice or initiation of departmental inquiry or even lodgment of any FIR against any Civil Servant, shall not deprive him from his next promotion, if he is otherwise qualified and meets all the requisite formalities for consideration to be promoted in next grade. Similarly, there is neither any bar nor any impediment upon the department to proceed further and simultaneously initiate disciplinary proceedings against any Civil Servant in accordance with law[5]".
9. We have noted that apparently the timing of issuance of the Charge Sheet raises many questions in minds about the initiation of departmental proceedings against the petitioner, particularly, in the background, when petitioner has objected on the officers sent on deputation.
We, however, restrain ourselves from commenting upon the same that may prejudice the case of either party and leave it open to the respondent-Department to proceed with the matter justly and fairly.
10. In the instant case, we, however, find that there are letters dated 17.04.2006 and August, 2014 of the NAB authorities conveyed to the Chairman, Federal Public Service Commission, Islamabad that postings and transfers of civil servants against whom criminal proceedings are initiated shall also be processed in accordance with law without being influenced by the pendency of any enquiry or investigation in the National Accountability Bureau.
11. Thus, keeping in view the overall facts of the case, seniority position of the petitioner and his repeated deferment, we allow this writ petition and direct the respondents to consider the petitioner for promotion to the post of Director General (BPS-21) with effect from the date when his colleagues/juniors were allowed promotions with all back benefits.
1. Ma. Ziaul Hassan, Home Secretary etc Vs. Miss Naseem Chaudhry (2000 SCMR 645)
2. Hammad Raza Qureshi Vs. Departmental Promotion Committee, Punjab (2008 PLC(C.S.) 551)
3. Naeem Abbas Vs. Government of Punjab through Secretary and others (2017 PLC(C.S.) 404)
4. Muhammad Tarique Khan Vs. Trading Corporation of Pakistan (Pvt) Limited through Chairman and others (2024 PLC(C.S.) 91)
5. Muhammad Akbar Khan Durrani Vs. Federation of Pakistan through Secretary, Water and Power, Government of Pakistan and others (2017 PLC(C S.) Note 31)