1. Petitioner through this Constitutional petition has taken exception to the decisions of the Departmental Promotion Committee (D.P.C.) dated 3-6-1989 and 24-12-1989 whereby he was declared not yet fit for promotion and superseded respectively for the post of Inspector, F.I.A. With a further direction that his case be considered in accordance with law and rules with effect from 1987 when his next Junior Sub-Inspectors were promoted as Inspector.
2. Facts relevant for the decision of this Constitutional petition are that the petitioner who is M.A.
3. (Economics) LL.B. Joined F.I.A. As Sub-Inspector on 29-3-1977. He was, however, removed from service on 15-10-1980 for the reason that he impersonated for has real brother Muhammad Mushtaq in an examination held on 5-3-1980 in the District Police Lines, Lahore in connection with the appointment of A.S.-I. Police. The Federal Service Tribunal on an appeal filed by the petitioner set aside his removal order with a direction for de novo inquiry through its judgment dated 18-9- 1984 on the ground that the inquiry was, conducted without giving a reasonable opportunity of hearing and the inquiry report alongwith the recommendation of the authorised officer were not given to him. Consequent to the judgment of the Federal Service Tribunal the petitioner was reinstated in service and a fresh inquiry was conducted against him. He was accordingly removed from service again on 31-3-1985. The petitioner preferred an appeal before the Federal Service Tribunal on 3-8-1985 who accepted the same through its judgment dated 29-5-1988 setting aside the removal order and directed his reinstatement in service with consequential benefits as may be admissible under law.
4. The petitioner reported for his duty on 7-7-1988. Since the consequential benefits as directed by the Federal Service Tribunal were not given to him as such he was constrained to move a miscellaneous application 192/88 before Federal Service Tribunal for the redress of his grievance.
5. As reflected from the order dated 13-12-1989 this application was disposed of as having borne fruit as the petitioner was paid the arrears of his salary. The Departmental promotion Committee under the Chairmanship of Additional Director with to members, a Director and a Deputy Director respectively considered his case for promotion to the rank of Inspector on 3-6-1989 but he was found not vet fit for promotion (underline is mine). Another meeting of DPC with the same constituents was held on 24-12-1989 wherein the petitioner was superseded. The petitioner impugned the proceedings of D.P.C. Held on 3-6-1989 and 24-12-1989 alongwith the consequential promotion Notification dated 14-1-1990 through Writ Petition No. 3825/S-1990 which was withdrawn by him on 4-12-1991 as the officers who were promoted effecting the rights of the petitioner were not impleaded therein. Hence this Constitutional petition.
6. Argument has been advanced that the Departmental Promotion Committee was not properly constituted as according to ESTACODE revised Addition 1993 for the post in Grades 11 to 16, the Committee is to comprise of an officer of Grade-20 and to officers of Grade-19 while in the present case the third member Deputy Director was a Grade-18 Officer. Another argument has been advanced that in-between meeting of Departmental Promotion Committee held on 3-6-1989 and 24-12-1989, there was nothing adverse against the petitioner but in spite of ~the same in the first D.P.C. He was declared not yet fit for promotion while in the second he was superseded which shows that the whole exercise had been undertaken in an arbitrary manner in clear violation of law and rules.
7. Learned Deputy Attorney-General as well as the learned counsel appearing for the contesting respondents have taken exception to the very maintainability of this Constitutional petition, not only in view of bar created by Article 212 of the Constitution of Islamic Republic of Pakistan but also on the ground that in view of the withdrawal of his earlier writ petition, the present writ petition would not be maintainable. As far the Constitution of Departmental Promotion Committee is concerned it is argued that the same was rightly constituted in terms of Schedule 1 of Federal Investigating Agency (Appointment, Promotion and Transfer) Rules, 1975. They have also supported the order of supersession.
8. I have considered the contentions. The F.I.A. Is an Agency constituted under the Federal Investigating Agency Act, 1975 for the investigation of offences committed in connection with matters concerning the Federal Government and the terms and conditions of its employees are regulated by the law read with the rules framed thereunder. A reference can be made to the Federal Investigating Agency (Appointment, Promotion and Transfer) Rules, 1975. The Federal Investigating Agency Act, 1975 as well as the rules framed thereunder are special provisions as such the argument of the learned counsel appearing for the respondents that the Departmental Promotion Committee was properly constituted in terms of the aforesaid rules has got some force.
9. However, I am not dilating on this issue any further as the writ petition merits acceptance on other grounds.
10. It is admitted that the petitioner entered the service of F.I.A. As Sub---Inspector on 29-3-1977. He was removed from service on 15-10-1980 which order was set at naught as earlier mentioned by the Federal Service Tribunal twice respectively on 18-9-1984 and 29-5-1988. He was reinstated in service with all consequential benefits. The Departmental Promotion Committee first considered his case on 3-6-1989 and found him not yet fit for promotion as Inspector. His case was again considered on 24-12-1989 by Departmental Promotion Committee who superseded him. The grounds for supersession as reflects from the minutes of the Departmental Promotion Committee qua the petitioner are given at Serial No. 5 which are as under:-- "He was expelled from Training Institute on account of grave misconduct vide orders dated 24-7- 1977, awarded penalty of censure vide order dated 7-1-1978. He was placed under -suspension with effect from 1-3-1979 on the charge of gross-misconduct, removed from service vide order dated 15-10-1980. On appeal the Federal Service Tribunal set aside the orders of removal vide judgment dated 18-9-1984 with directions to hold departmental proceeding afresh. He was reinstated in service and placed under suspension with effect from 4-11-1984. He was again removed from service vide order dated 31-3-1985. On appeal in Federal Service Tribunal, he was reinstated in service vide order dated 29-5-1988. Hence superseded."
11. The perusal thereof demonstrates that the Departmental Promotion Committee was mainly influenced and swa yed by the removal of the petitioner from service on 15-10-1980 and the penalty of censure awarded to him on 7-1-1978. I am afraid both these grounds/reasons were not available to D.P.C. When petitioner's case was considered second the on 24-12-1989. The petitioner in the first Departmental Promotion Committee meeting held on 3-6-1989 was found not yet fit for promotion while in the second meeting held on 24-12-1989, he was superseded in spite of the fact that the material remained the same in both meetings. It is admitted that in-between there was no adverse remark or complaint against the petitioner. The ground of removal which had already been wiped out by the Federal Service Tribunal was not available at all. The penalty of censure was awarded to the petitioner for his quarrel with another trainee during the initial period of his service. This minor penalty cannot be allowed to haunt him throughout his career. He was due for promotion as Inspector in the year 1989 when his next juniors were promoted. The determination of D.P.C. Dated 24-12-1989 is also inconsistent with its earlier determination dated 3-6-1989. In the first meeting the petitioner as earlier stated was declared as not yet fit for promotion while in the second meeting held on 24-12-1989 he was superseded in spite of the fact that the material remained the same.
12. It has been held in Ch. Yar Muhammad Durriyana v. Government of the Punjab and another 1992 PLC (C.S.) 95 as under: "It is, therefore, clear that censure and withholding of promotion or increment are different types of minor penalties. Now the petitioner suffered penalty of censure as a result of second enquiry while his promotion has been withheld for the same reason. Therefore, the petitioner has been made to suffer twice on the same count. This is not permissible. It is made clear that had the petitioner been adversely reported in the meanwhile or had suffered any other punishment, then of course, as a result of accumulative effect of these stigmas he could be declared, unfit for promotion. But on account of only minor penalty of censure while the other record has no blemish, the petitioner could not be deprived of the promotion. Therefore, the order of Departmental Promotion Committee dated 28-7-1985 was illegal." (Underline is mine).
13. As already stated the Departmental Promotion Committee could not have taken into consideration the removal of the petitioner from service as the same was already set at naught by the Federal Service Tribunal. In this behalf I am fortified by the observation made by the learned Judge in Muhammad Ejaz v. Secretary to Government of Punjab, Home Department 1991 PLC (C.S.) 244) wherein it was observed that the "Departmental Promotion Committee ignored promotion right of Police Officer on the ground of punishment of censure but' failed to appreciate that said punishment had been set aside before his case was considered by the Promotion Committee--- Departmental Promotion Committee thus failed to exercise its discretion fairly and even-handedly as much as certain colleagues of, petitioner Police Officer had been promoted in spite of stinking service record---High Court though could not substitute its opinion for that of Departmental Promotion Committee, yet it could set aside recommendation of such Committee in exercise of its Constitutional jurisdiction---Proceedings of Departmental Promotion Committee ignoring petitioner Police Officer for promotion were declared to be illegal and were set aside--- Respondent Authority was directed to place the case of Police Officer before Departmental Promotion Committee for its fresh decision in accordance with law". As far the jurisdiction of this Court is concerned the bar created under Article 212 of the Constitution of Islamic Republic of Pakistan would not come into the way of the petitioner. The Supreme Court while refusing leave to appeal approved the view of the Service Tribunal that the fact of deferment of civil servant for further promotion could not be challenged before the Tribunal in a case reported in M.A. Rafique v.
14. Managing Director (Power), WAPDA and another (1990 SCMR 927). In M.R. Khalid v. Government of the Punjab 1994 PLC (C.S.) 138) it has been observed as under:-- "In the present case, however, as seen above, petitioner was found not fit for the grant of pro forma promotion due to his unsatisfactory record of service. That being so, he could not have maintained an appeal against the impugned decision before the Service Tribunal in view of the bar contained in proviso (b) to subsection (1) of section 4 of the Service Tribunals Act. In the circumstances, the jurisdiction of this Court to examine the vires of the impugned decision is not excluded."
15. The petitioner in this case has suffered a prolong agony on account of penalty of censure which was awarded to him at the the of his entry into service. Apart from this he has already secured some good reports and also secured second position in the 11th special investigation copy of F. I. A.
16. Academy held in 1989 apart from clearing upper class course at Police College Sihala. Withholding of promotion on minor penalty of censure in the manner done in the present case cannot be sustained. Since his case was not fairly dealt with and the grounds which were taken into consideration in the second D.P.C. Were not at all available as such it can be safely stated that his case was not at all considered in accordance with law. The withdrawal of earlier writ petition by the petitioner would also not come into his way as the same was not decided on merits, Resultantly, for what has been stated above, the writ petition is accepted and the orders passed by the Departmental Promotion Committee dated 3-6-1989 and 24-12-1989 are declared to have been made without lawful authority and are hereby set aside. The result is that the case of the petitioner is now remitted and the Departmental Promotion Committee would consider it afresh for its 'decision in accordance with law. There shall be no order as to costs.