' The petitioner belongs to the Income Tax Group who had joined as Income Tax Officer on 1-11-1969.
On. 8-9-1991 he was promoted to BS-20. The grievance in this petition is that despite recommendation of the Central Selection Board of his promotion to BS-21 duly approved by the Prime Minister, the respondents are not issuing notification for the promotion of the petitioner.
2. The facts which are not disputed are that the Central Selection Board in their meeting held on 2- 4-1998 recommended five officers of the Income Tax Group for promotion to BS-21 against clear vacancies. The petitioner was one of the aforesaid five officers. Four officers were recommended against temporary vacancies while two officers were provisionally recommended against anticipated vacancies. In. All 11 officers were recommended for promotion to BS-21. These recommendations were approved by the Prime Minister on 25-6-1998.
3. On 26-8-1998 two officers, recommended against permanent vacancies and two against temporary vacancies were promoted posted to BS-21 posts through notification issued by the Central Board of Revenue. Another officer namely. Muhammad Shafi Malik, who was provisionally recommended for promotion was posted to a BS-21 post vide order, dated 5-10-1998. Muhammad Munir Qureshi recommended against permanent vacancy was posted to BS-21 post on 10-10-1998.
All other officers except the petitioner stand already promoted and posted to BS-21 posts:
4. According to the parawise comments filed by the respondents, petitioner's promotion could not initially be notified for want of a vacancy and thereafter on 7-9-1998 he was made an OSD on account of certain allegations the nature of and the action, if any, taken by the two respondents was not identified in the comments..
5. The learned counsel for the petitioner has contended that the petitioner has unfairly been discriminated against. The two respondents had no jurisdiction to withhold petitioner's promotion after the Central Selection Board had recommended him for promotion to BS-21 which recommendation had duly been approved by the Prime Minister. He further contended that for no fault of his, the petitioner is being deprived of his hard-earned. Promotion with which better elements are attached. This, according to the learned counsel, amounts to undoing the recommendations and the order respectively of the Central Selection Board and the Prime Minister.
His further grievance is that petitioner has been penalized without the complaint if any against him having been substantiated.
6. The learned standing counsel for the Federal Government has contended that the issue raised in this Constitutional petition is germane to the terms and conditions of service of the petitioner, and therefore, the writ petition is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Reliance was placed on Asad Ullah Rasheed v. Haji Muhammad Muneer and others (1998 SCMR 2129) and Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280). On facts he attempted to justify the inaction of the respondents in not -implementing the recommendations and the order of the Prime Minister on the ground that before the petitioner could be posted against a Grade-21 post a complaint of corruption was received on which a fact finding inquiry is in progress and therefore, the order of his posting to a post in BS-21 was withheld.
7. I have considered the submissions made by the learned counsel for the parties. It has been verified from the record, that the Prime Minister approved the recommendations of the Central Selection Board on 25-6-1998. The first pretext that initially the petitioner could not be posted because of want of a vacancy is also not correct because undisputedly the petitioner was promoted against five clear vacancies and vide order, dated 26-8-1998 four officers were promoted which include two recommended against permanent vacancies and two recommended against temporary vacancies while the petitioner was appointed as OSD on 7-9- 1998 as per the stance of the department. The complaint, if any, on the basis of which the petitioner was made OSD has not been placed on record by the respondents. It is claimed that a fact-finding inquiry has not yet been completed. With the rejoinder the petitioner has filed a copy of an anonymous complaint received in the Central Board of Revenue on 14-11-1998. An inquiry into this complaint was held by the Director (Inquiries) of the Central Board of Revenue and it was recommended (on 23-1-1999) that no further action was required on the said complaint.
8. In any case, the question requiring determination is whether on the basis of a complaint which remains only an unsubstantiated allegation, unless found to be correct, the respondent could withhold promotion of the petitioner. The answer to the above question is clearly in the negative.
The petitioner could not have been deprived of his promotion duly approved by the competent Authority only on the basis of a complainant the truth of which is yet to be established. Under the Government Servants (E&D) Rules; 1973, withholding of promotion is a major penalty which cannot be imposed unless the Officer concerned is found guilty of the charges/allegations in properly held inquiry.
9. Likewise, the Establishment Division or the Central Board of Revenue had no authority to withhold implementation of the recommendation of the Central Selection Board duly approved by the Prime Minister. The Central Selection Board must have examined the record of the petitioner before recommending the petitioner for promotion to Grade-21. Therefore, an unsubstantiated allegation was totally extraneous to withhold promotion of the petitioner to BS-21 particularly when all other officers recommended by the Central Selection Board have already been promoted posted.
10. Reference may be made to N.A. Qureshi v. Government of the Punjab and 2 others (PLD 1982 Lah.
242). In this precedent case, the Governor of the Punjab had directed promotion of the petitioner subject to the formal approval of the Provincial Selection Board. The said Board declined approval to the promotion of the petitioner on the ground that he was involved in a criminal case. While allowing the writ petition, this Court made the following observation:-- "Before concluding, I would like to observe that the promotion of the petitioner pending the criminal case would not, in any way, cause an irreparable loss to the Government inasmuch as if the petitioner is found guilty by the trial Judge then he shall have to face the consequences."
11. As long as the petitioner is not found guilty of the charges, if any, he was entitled to serve in the higher post and receive benefit attached to a post in higher scale after having been found fit for promotion to BS-21. It may be noted that the petitioner was appointed as OSD on 7-9-1998 and a period of almost nine months has lapsed but even the fact findings inquiry has not been completed. To put it differently, the authorities have not yet decided even to proceed against the petitioner under the Government Servants (E & D) Rules.
12. The objection of the learned standing counsel for the Federal Government that the writ petition is barred by virtue of the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, has no merit. The Service Tribunal is a tribunal of limited jurisdiction and cannot entertain all legitimate grievances of the civil servants. Reference may be made to Fazal Elahi Ijaz and 22 others v. Government of the Punjab and 27 others (PLD 1981 SC 1370). Unless, therefore, jurisdiction of the Tribunal extends to a matter, the jurisdiction of the High Court under Article 199 cannot be abridged or curtailed.
13. In this case, there is no order against which the petitioner could agitate the matter before the Service Tribunal. He only seeks implementation of the recommendations and the order respectively of the Central Selection Board and the Prime Minister. Reference may be made to Mateen-ul- Hassan Khan and another v. The Secretary, Finance Department, Government of Sindh, Karachi and another (NLR 1986 Service Kar. 9) in which the petitioner sought implementation of the orders passed in his favour by the departmental authorities. The objection as to the jurisdiction of the High Court to entertain a Constitutional petition was repelled.
14. Apart from the fact that there is no order to be appealed against another aspect of the matter is that promotion/posting of the petitioner to BS-21 has been withheld on the allegation of corruption against him. The position taken by the learned standing counsel for the Federal Government, this directly pertains to the domain of fitness and suitability. Therefore, the case is fully covered by proviso (b) to section 4 of the Service Tribunals Act, 1973 and, the matter does not fall within the jurisdiction of the Federal Service Tribunal. The judgments relied upon by the learned standing counsel are not applicable. The case of Khalid Mahmood Wattoo (supra) arose out of the claim of the petitioner for a foreign posting and there exited on order which could be assailed before the learned Federal Service Tribunal. The case of Assad Ullah Rashed (supra) involved posting transfer appealable orders had been passed by the departmental authorities.
15. Before parting with this judgment I may add that ouster of the jurisdiction of superior Courts is not to be lightly inferred and in case of doubt it is to be resolved in favour of jurisdiction rather than its ouster.
16. For what has been stated above, this writ petition is allowed and the writ prayed for is issued.
The respondents shall immediately implement the recommendation of the Central Selection Board duly approved by the Prime Minister for promotion of the petitioner to BS-21. The needful to be done within 30 days of the receipt of copy of this order by the two respondents. The office shall forward a copy each to the two respondents. The costs of this petition shall also be borne by the respondents.
' Lawyer's fee is fixed at Rs,5,000