IJAZ ANWAR, J. This writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:- "It is, therefore, humbly prayed that on acceptance of this writ petition, respondents may please be directed to:- a) Convene a meeting of Board regarding the same subject and consider the case of petitioner as per law governing the subject. b) To consider the case of promotion of the petitioner from the date of accrual of his right, irrespective of the pending inquiry, as required under the law.
C) To promote the petitioner in the light of law governing the subject and judgments rendered by the august Supreme Court of Pakistan and meeting of Board dated 27.10.2017 may please be declared as null and void to the extent of rights of the petitioner. d) Any other relief which has not been specifically asked for but this Hon'ble Court deems appropriate may also be awarded to meet the ends of justice".
2. Initially, petitioner was appointed as Assistant Engineer in the year, 1987 and thereafter rendered his services in different Departments of Khyber Pakhtunkhwa. In the year, 2012, he was transferred as Director, Galiyat Development Authority, Abbottabad and accordingly was repatriated to his parent Department i.e. Local Council Board, Peshawar in the year, 2014. On 27.10.2017, a meeting of the Board (4th in 2017) with regard to consideration, regularization and promotion of officers of the Local Government Department was held, however, the case of promotion of the petitioner from BSP-18 PUGF (Engineering Cadre) to BPS-19 PUGF (Engineering Cadre) was deferred on the ground that disciplinary proceedings are pending against him during his posting in Galiyat Development Authority. Being aggrieved, he invoked the constitutional jurisdiction of this Court by filing the instant writ petition.
3. In compliance of the order of this Court, respondents have filed their parawise comments, wherein, they opposed the issuance of desired writ asked for by the petitioner.
4. Arguments heard and record perused.
5. Perusal of the record reveals that petitioner while holding the post of BPS-18 Officer of PUGF (Engineering Cadre) was duly considered by the Local Council Board on 27.10.2017 for promotion to BPS-19 PUGF (Engineering Cadre); however, the Board deferred his case for promotion on the ground that disciplinary proceedings are pending against him during his posting in Galiyat Development Authority. We are informed that petitioner has also retired from service in December, 2019. Petitioner, while serving as Director (Technical) in Galiyat Development Authority, was charged for certain allegations and to this effect, the Local Council Board vide letter dated 29.12.2017 served him with the charge sheet along with the statement of allegations. It appears that petitioner faced departmental proceedings and ultimately the Inquiry Officer, after conducting a thorough inquiry into the matter under the provisions of Khyber Pakhtunkhwa Local Councils Servants (Efficiency and Discipline) Rules, 1980, found that the allegations levelled against the petitioner were under some misunderstanding and thus not proved. It was also recommended that he may be exonerated of the charges. The inquiry report was submitted on 25.09.2018 and by then, petitioner was not retired from service.
6. During the course of hearing, when learned counsel for the respondents is confronted with the recommendations of the Inquiry Officer, he referred to letter dated 18.06.2019, whereby the report of the recommendations of the Inquiry Officer was not accepted by the competent Authority and an Inquiry Committee was constituted consisting of two senior most officers. We are also informed that in view of the interim order of this Court dated 01.08,2019 and retirement of the petitioner, the Inquiry Committee has not proceeded any further.
7. It is very unfortunate that the Departments of the Provincial Government are not adhering to their Efficiency and Discipline Rules. If we go through these Rules, we find that for the service of charge sheet, reply, proceedings of inquiry, service of Show-Cause Notice and its reply, time frame is provided, however, we have seen that years and years passed and the departmental proceedings are kept pending. This is one of the reasons that civil servants/Government servants have thronged to the Courts against the inactions of the Departments, this case is one such example.
8. The record depicts that the matter in hand is initiated somewhere in the year, 2014 and it took long five years to fix the responsibility and to bring to books the person(s)/delinquent officer(s). We will never give a clean chit to any delinquent officer/official involved in a misconduct of any kind, however, in such delayed process many innocent officers/officials are deprived of their valuable rights including promotion.
9. The Hon'ble High Court in the case titled "Muhammad Afzal Khan v. Government of Punjab through Secretary to Government of the Punjab, C&W Department and another (2009 PLC (C. S.)
40)" observed regarding such delayed inquiries as follow:
7. Surprisingly keeping the civil servant continuously for a long period in facing certain enquiries and without concluding the proceedings for an indefinite period smacks arbitrariness and smells mala fides when now a days there is a specific provision that enquiry must be concluded in a specific time.
Hanging sword on the heads of certain civil servants in the form of pendency of enquiry reflects only to deprive from their further lawful right of promotion, which can be termed an exploitation and nothing else because there is no bar, on the part of administration to reach on logical conclusion and then impose penalty on that very civil servant if he is found guilty, when this part of the administration is unfettered then such like treatment, which is meted out to the petitioner cannot sustain in the eye of law.
10. In the instant matter, despite his eligibility, petitioner was not considered for promotion on 27.10.2017 on the ground of pendency of inquiry proceedings till such time, he retired from service. It is settled principle of law that accused is considered innocent unless proved guilty. While in the instant case, petitioner is deprived of his promotion and till his retirement from service, there are no findings regarding his guilt. Withholding of promotion is one of the penalty provided under the Efficiency and Discipline Rules and in the instant case, it appears that petitioner was awarded penalty of withholding of promotion without any fault on his part. Under Fundamental Rule 54A, if a government servant, who has been suspended pending inquiry into his conduct attains the age of superannuation before the completion of inquiry, the disciplinary proceedings against him shall abate and such Government servant shall retire with full pensionary benefits and the period of suspension shall be treated as period spent on duty. Similarly, under provision to FR 17, if a civil servant who was entitled to be promoted from a particular date was for no fault of his own, wrongfully prevented from rendering service to the Federation in the higher post, such civil servant shall be granted proforma promotion and to be paid the arrears of pay and allowance of such higher post. In the reported cases titled, "Naeem Abbas v. Government of Punjab through Secretary and 04 others (2017 PLC (C.S.) 404)", "Abdul Rauf v. Government of the Punjab through Secretary (Food), Civil Secretariat, Lahore and another (2016 PLC (C.S.) 1029)", "Javaid lqbal Nasir v. Managing Director, PEPCO and 02 others (2012 PLC (C.S.) 1043)", "Muhammad Afzal Khan v. Government of Punjab through Secretary to Government of the Punjab, C&W Department and another (2009 PLC (C.S.) 40)", "Hammad Raza Qureshi v. Departmental Promotion Committee, Punjab, Lahore and 9 others (2008 PLC (C.S.) 551)", "Sh. Muhammad Riaz v. Government of the Punjab through Secretary, Communication and Works and another (2003 PLC (C.S.) 1496)", "Muhammad Ayaz Khan v Government of Sindh and others (2007 PLC (C.S.)
716)" and "Maj. Ziaul Hassan Home Secretary and others v. Mrs. Naseem Chaudhry (2000 SCMR 645), it was held that mere pendency of departmental proceedings should not be made hurdle in the matter of promotion.
11. We are conscious of the fact that in the promotion policy of the Provincial Government, it is provided that where a civil servant is booked in a departmental proceedings, his/her case for promotion shall be deferred; simultaneously, it is also provided that in case of his/her exoneration, such civil servant is entitled to be promoted from the date when he/she was deferred along with his/her batch mates who got promotion.
12. In the instant case, petitioner was once exonerated by the Inquiry Officer on 25.09.2018 and it took further nine months for the competent Authority to disagree with the said report and to initiate a fresh inquiry. It-is height of irresponsibility. It appears that pendency of departmental proceedings against a civil servant is considered as a routine matter in the Departments and they have failed to feel the agonies of the officers/officials. It is high time that the worthy Chief Secretary shall take notice of these facts, illegalities and irregularities in the conduct of the departmental proceedings, particularly, the delay occasions in each and every inquiry in violation of the Efficiency and Discipline Rules. To our understanding, the officers who are the cause of such delay in departmental proceedings are violating the mandatory provisions of the Efficiency and Discipline Rules and it also amounts to inefficiency/misconduct within the meaning of law.
13. Petitioner has been deprived of his promotion on the ground of pendency of departmental proceedings and he has never been proved guilty during the course of his service and as such, on his retirement in terms of FR 54A, he stands exonerated. In view thereof, he is entitled to be considered for promotion w.e.f. 21.10.2017. His case be placed before the Local Council Board for pro forma promotion in accordance with law positively within a period of two months. This writ petition is allowed in the above terms.
Petition allowed.