' MUHAMMAD SAIR ALI, J.---On appointment as Assistant in Sindh Employees Social Security Institution Karachi on 1-6-1971, the appellant by 1976 became Inquiry Officer. In 1977 post of Inquiry Officer was re-designated as Establishment Officer. In 1983 scale of post of Establishment Officer was upgraded from NBS.14 to NBS.16 and the appellant was also promoted from Grades 14 to 16 therealong. Appellant's good performance won him advance increments and honoraria from time to time. In August, 1984, the appellant was transferred and posted as Administrative Officer at Punjab Employees Social Security Institution, Head Office, Lahore. Appellant's work performance was rated as excellent and from 1984 to 1986, he earned further advance increments. On 4-3-1987 through Office Order No,SS-Admn-IX (717)/87/3877, post of Administrative Officer was upgraded from BPS.16 to BPS.17 and through the same Office Order. The appellant was granted accelerated promotion in BPS.17 against the same post. Consequent thereupon, his basic pay scale was also revised by Office Order dated 4-1-1988. The appellant was granted additional honoraria from 1988 to 1990. The post of Administrative Officer (BPS.17) was redesignated to that of the Deputy Director (Administration) on 22-5-1990.
2. However, in pursuance of decision of Governing Body of the Institution taken in 51st meeting dated 20-1-1991, by Office Order No, Admn. 1 (9169)75/16, dated 29-1-1991, respondent No,1 i,e, Commissioner Punjab Employees Social Security Institution, rescinded Office Order dated 4-3-1987 by which accelerated promotion was granted to the appellant from BPS.16 to BPS.17. Appellant was thereby reverted to his original substantive post in 3PS.16. The appellant thereupon filed Writ Petition No,865 of 1991 challenging orders dated 29-1-1991 and 20-1-1991 respectively passed by respondents Nos. 1 and 2. By order dated 10-2-1991, this writ petition was disposed of by setting aside the above-said orders with direction to respondent No,1 i,e, Commissioner, Punjab Employees Social Security Institute to re-decide the matter on merits after granting an opportunity of hearing to the appellant. Respondent No,1 decided the matter afresh and by order dated 3-3-1991, he rescinded and withdrew Order No,SS-AdmnIX(717)/87/3877 dated 4-3-1987. The appellant thereupon filed Writ Petition No,1909 of 1991 which was dismissed by the learned Single Judge, (as he then was) through judgment dated 27-5-1992, hence the present I.C.A.
3. Learned counsel for the appellant contended that under Regulation-8 of Punjab Employees Social Security Service Regulations, 1973, he stood confirmed in BPS-17 after expiry of the probation period of two years and even otherwise upon implementation of order of his accelerated promotion dated 4-3-1987, no locus poenitentiae remained with respondent No,1 to rescind and withdraw the said order. And that appellant could only be reverted to his original Basic Pay Scale- 16 upon proper Administrative Inquiry on the charges of misconduct and no such charges were leveled against the appellant and no inquiry was held, therefore, his reversion was ultra vires the law. It was further maintained by the learned counsel for the appellant that number of other persons had been granted accelerated promotions in similar circumstances under the policy circular of the institution as per the settled practice of the Department as has been detailed out in the undenied ground "G" of the writ petition. And that accelerated promotion was granted to the appellant on the basis of repeated recognitions granted to him. Through award of advance increments, honoraria and excellent ACRs while respondents Nos.6 and 7 faced disciplinary actions from time to time. And that the Governing Body's decision was misinterpreted with cross-reference to meeting No,37 which related only to accelerated promotions granted from Grade-17 to Grade-18 or BPS-19 to BPS-20 and that the same did not apply to the promotions from BPS-16 to BPS-17 as applicable in case of the appellant. It was further maintained that order was the result of mala fides as it was manoeuvred by respondent No,7 who was, the Staff Officer of the Minister. And that it is a case of discrimination and unequal treatment and that para.5 of the policy of accelerated promotion has been misapplied as in the case of accelerated promotion, recommendation of the Board or ordinary procedures were not applicable. It was emphatically argued that in absence of unproved fraud or misrepresentation or manoeuvring, respondent No,1 lost its right to rescind or withdraw the order of appellant's promotion to BPS-17 after the same had been duly implemented and acted upon for a period of about 3-4 years. In support of the arguments, learned counsel for the appellant relied upon the cases of "Pakistan, through the Secretary, Ministry of Finance v.
Muhammad Himayatullah Farrukh" (PLD 1969 SC 407), "Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and two others" (PLD 1991 SC 973), Raja Muhammad Nawaz v. Government of the Punjab" (1981 SCMR 523), "Ghulam Hussain v. Province of Punjab (1989 PLC (C.S.) 487), "Bahadur Shah, Divisional Engineer Development-II, ITR Islamabad and others v.
Pakistan through Secretary, Ministry of Communication and others" (1988 SCMR 1769). Government of Punjab v. Raja Muhammad Iqbal" (1993 SCMR 1814), "Punjab Employees' Social Security Institution, Lahore and others v. Manzoor Hussain Khan and others" (1992 SCMR 441), and "Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another"
4. Contrarily, learned counsel for the respondents contended that in view of the availability of appeal or review under Schedule to Regulation No,3 of the Punjab Employees Social Security Institution (Administrative and other Service Matters) (Powers of the Commissioner and other officers) Regulations, 1973. Framed under section 80 of the West Pakistan Employee's Socal Security Ordinance, 1965, I.C.A. Was not maintainable. And that appellant's accelerated promotion, as initially allowed was through a void and unlawful order, wherefor, as observed in the case of The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin" (PLD 1992 SC 207), locus poenitentiae could be exercised by respondent No,1 to rescind and withdraw the invalid, and incorrect order of accelerated promotion. It was further contended that the appellant was not qualified to be promoted and even in the case of accelerated promotion, basic qualifications and rules as to promotions cannot be disregarded by the Promoting Authority And that the Promoting Authority in the appellant's case ignored the settled principles of law. Learned counsel for the respondents thus supported the impugned order dated 27-5-1992 and placed heavy reliance thereupon.
5. Learned counsel appearing for respondents Nos.1 to 5 also adopted the arguments of the learned counsel for respondents Nos.6 and 7 but added that most of the grounds urged by the appellant in this appeal were neither raised nor urged in the writ petition, therefore, the same were unavailable to the appellant at this stage. And that in absence of prior consultation of the authority., accelerated promotion could not have been granted to the appellant by respondent No,1 .
6. We have considered the submissions made by the learned counsel for the parties and have also examined the record and the precedents relied upon by the parties. Learned counsel for respondents Nos.6 and 7 referring to Regulation No,3 of the Punjab Employees Social Security Institution (Administrative and other Service Matters) (Powers of the Commissioner and other officers) Regulations, 1973 contended that since the said Regulation provides for an appeal before the Authority specified in Appendix "A" therefore, no Intra-Court Appeal lies under section 3 (2) of the Law Reforms Ordinance, 1972 from a judgment made by the learned Single Judge of this Court.
Examination of said Regulation shows that the Punjab Employees Social Security Institution (Administrative and other service matters) Powers of the Commissioner and others officers)
Regulation, 1973 were framed by the Governing Body of Punjab Employees Social Security Institution in exercise of powers conferred on it by section 80 of the West Pakistan Employees Social Security Ordinance, 1965 and the same were published through Notification No,II-16(Lab-II)/66 in the Punjab Gazette of August 13, 1973. Regulation No,3 provides as under:- "3 (1). The Authorities for the purpose of appointment, punishment, appeal, transfer and for performing the function of controlling officers under T.A. Rules in respect of each person holding a post mentioned in column 2 Appendix 'A' shall be such as are specified against the post of such person in columns 3 to 8 of the said Appendix.
(2), An authority empowered under these Regulations to impose a penalty on the holder of a post shall be competent to impose such penalty on every person holding such post whether such person was appointed by such authority or not: ' Provided that the Commissioner shall have the power to impose any of the penalties on any holder of a post mentioned in column 2 of Appendix ' A' "
7. Column-3 of Appendix '"A" thereto mentions "Commissioner" as the Appointing Authority, in the case of Administration Officer/Deputy Director (Administration), competent to suspend, reduce in rank, retire compulsorily, remove or dismiss and "Chairman" as the appellant authority in respect of suspension, reduction in rank, compulsory retirement, removal or dismissal. Examination of the above-quoted Regulation 3 and Appendix "A" thereto shows that the same is couched in a language which suggests that a Commissioner of the Institution is the competent Authority empowered to impose any of the penalties like reduction in rank, compulsory retirement, removal or dismissal from service and the appellant authority in such cases is the "Chairman" of the Institution. In the present case, appellant's writ petition was directed against the order dated 3-3- 1991 passed by respondent No,
1. The Commissioner, whereby he rescinded and withdrew Order No,SS-Admn-II(717)/87/3877, dated 4-3-1987, granting accelerated promotion to the appellant and reverted him to his original substantive post in BPS-16. Appellant's reversion to BPS-16 was admittedly and evidently not consequent upon imposition of major penalty in punishment for charges of misconduct. The impugned order dated 3-3-1991 of respondent No,1 that order of accelerated promotion dated 4-3-1987 was withdrawn as the same had allegedly been passed without recommendations of the relevant promotion committee. We, are, therefore, of the opinion that above-quoted Regulation No,3 was inapplicable to the case in hand and the nature of appeal visualised thereunder cannot be interpreted to be a bar upon. Maintenance of an Intra-Court Appeal by the appellant in terms of subsection (2) to section 3 of the Law Reforms Ordinance, 1972.
8. As stated above, respondent No,1 passed the impugned order dated 3-3-1991 rescinding and withdrawing the accelerated promotion of the appellant on the ground that accelerated promotion was granted to the appellant without recommendations of the Selection Board (Departmental Promotion Committee) and proceeds to record the following reasons:- "The petitioner has not been able to cite any rule, law or judgment to establish that the specified procedure for accelerated promotions can be ignored or such promotion can be granted without cogent reasons.---"
"Even the Punjab Civil Servants (Amendment) Act, 1987, adding section 8(a) to the Act of 1974, specifically mentions that out of turn promotion is to be granted in such a manner as may be prescribed'"....
"Another related principle laid down by the Tribunal was that accelerated promotion is to be considered 'as promotion in the manner so prescribed'."
"Viewed, in the light of principles laid down by the Honourable High Court and the Honourable Supreme Court of Pakistan, as discussed in preceding paragraphs, this order, dated 4th March, 1987 was obviously not a legal order and hence it cannot be held to have taken a legal effect. The petitioner cannot claim creating of a right in consequence of such an order."....
"Accelerated or out of turn promotion is essentially a 'promotion', as defined in the relevant Act and rules. Punjab Employees Social Security Institution has adopted the Punjab Civil Servants Act, 1974 and provisions of this law have to be viewed in totality. The superior Courts have held very specifically that promoting an employee without securing and considering recommendations of the Departmental Promotion Committee is illegal and without jurisdiction."
9. All the. Contentions raised by the learned counsel for the appellant against the impugned order dated 3-3-1991 are based upon the premise that accelerated promotion granted to the appellant through order dated 4-3-1987 was an "out of turn" and "extraordinary" promotion because of the appellant's excellent work, therefore, ordinary rules and procedures prescribed for appointments through promotion were inapplicable and there was no need to obtain recommendations of Selection Board. Further that it was not an appointment through routine promotion as prescribed by Regulation 5 of Punjab Employees Social Security Institutions (Service Regulations), 1973 and that appellant's out of turn promotion was a valid promotion even if recommendations of the Selection Board had not been obtained by the then Commissioner. Reliance was placed by the learned counsel for the appellant upon the judgment of Hon'ble Supreme Court of Pakistan in the case of "Government of Punjab v. Raja Muhammad Iqbal (1993 SCMR 1814) wherein criteria for grant of "out of turn promotions" was dilated upon. Learned counsel for the appellant, however, disregarded the fact that the entire controversy in the above case arose from refusal of "the Provincial Selection Board" to recommend and approve the "out of turn promotion" of the incumbent in the said case. The Hon'ble Supreme Court of Pakistan authoritatively setting down and explaining the principles of "out of turn promotion" remitted the case to "the Provincial Selection Board" for fresh decision in accordance with law and the observations in that case. This judgment obviously reinforces the contention of the respondents that out of turn promotion has to be channelised through and recommended by the relevant Selection Board to maintain the uniformity by procedures, standards and to rule out any act of arbitrariness and undue favouritism.
10. There is no doubt that "accelerated" or "out of turn" promotion is also a "Promotion". To earn this extraordinary promotion, adherence to standard criteria and rules cannot be dispensed with except for the rule qua seniority. To rise above the equally qualified colleagues does not entail rising above the applicable rules. The promoting authority is in fact doubly obliged i,e, to observe the ordinary rules of promotion-as well as to ascertain that the concerned incumbent is unequal amongst the equals. In so judging, standards of fairness and objectively are to be observed. Acting otherwise is bound to result in injustice, arbitrariness, discriminating and favoured a preference which is neither allowed by law nor the work morality. To bypass other employees by depriving them of their ordinary right of promotion, there must be strong reasons; ascertainment of which cannot be left to the whims of the authority only. Selection Board/Departmental Promotion Committee must be allowed to form its opinion and recommendations upon consideration of service record of those proposed to be superseded.
11. In the present case the requirements of Regulation 5 of Punjab Employees Social Security Institution (Service) Regulations, 1973 providing for the procedure of appointment through promotion were admittedly not complied with. As such the learned Single Judge, as he then was, validly observed as under:-- "7. It is an admitted fact that the petitioner was not promoted in BPS-17 on the recommendation of the concerned Selection Board on seniority-curn-fitness basis and his selection was neither made on merits nor in accordance with any objective standard laid down by the Institution for determining the relevant merit of the petitioner qua other eligible candidates. As a matter of fact, the eligible G candidates were completely ignored and their seniority and fitness was not taken into consideration at all by the Commissioner while passing an order for the promotion of the petitioner
12. Since the order of appellant's accelerated promotion was against the law, therefore, appellant cannot avail of the benefit of deemed confirmation after expiry of two years probation period under Explanation II of Regulation 8 (ibid). Non-observance of respondent No,5 leads to illegality of a nature which can be termed as a "fraud" on statutes or rules thereby attracting the principles laid down by the Hon'ble Supreme Court of Pakistan in the case of "Engineer-in-Chief v. Jalaluddin" (PLD 1992 SC 207). Respondents Nos.1 and 2 were thus possessed with locus poenitentiae to recall and rescind Order dated 4-3-1987. Other judgments relied upon and referred to by the learned counsel for the appellant do not in any way improve the case of the appellant. There is thus no justification to interfere in the impugned order.
13. In view of what has been discussed above the appeal is dismissed for being without any substance. There shall, however, be no order as to costs.
14. Dismissal of appellant's writ petition and the present appeal shall not be interpreted to disallow and deprive the appellant, the right to normal promotion(s) to which he may be or may become entitled under the law, rules and procedure.