IJAZ AHMAD CHAUDHRY, J.-- Through this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner seeks declaring the action of the respondents by not promoting him to the post of Deputy Superintendent. Rangers in the years 1998, 2000 and 2001 as illegal and that the petitioner be promoted with retrospective effect as Deputy Superintendent Ranger. It is further prayed that the Department may be directed to make the reply of letters and the applications attached to it. who is serving as Inspector in 13-Wing Sutlei Rangers Ghundi the tune of Rs.1,54,00,000/- and the recommendation has at Lahore while was appointed through direct entry in the year been made for the award of an amount of Rs.8,00,000/- and 1986 claims that he had apprehended the smuggling cases to [Vol.Iv Syed Kamran Asghar V. Director-General, Pakistan Rangers 533 (Ijaz Ahmad Chaudhry, J.)
2. The brief facts of the case are that the petitioner Rs.10,00,000/-. The petitioner is also an author of a Book for conducting of investigation. The petitioner claims that during eleven years of his service he had good performance and he had been graded A+ and B+ in the ACRs and the superior officers recommended for his promotion to the post of Deputy Superintendent Rangers to the Board but the Board in the year 1998 illegally did not promote the petitioner and he was discriminated while incompetent Inspectors were promoted and he was not promoted due to political reasons. Then the petitioner in the year 2000 was also ignored for promotion inspite of the recommendations of Commandant Cholistan Rangers, Rahimyar Khan. The petitioner filed an appeal before respondent No. 1 who had failed to decide the same . Similarly the petitioner was not promoted in the year 2001 as Deputy Superintendent Rangers inspite of the recommendations of his superiors. The petitioner again filed an appeal on 18.7.2001 which has not been decided by respondent No. 1 so far. The petitioner claims that he has better record than the Inspector who have been promoted in the last three Board's meetings mentioned in Para 6 had bad record but the petitioner who has A+ and B + record has been ignored. It is also stated that 25% seats are to be filled through direct recruitment or from deputations and 75% posts of Deputy Superintendent Rangers have to be filled by promotion but the department is acting in dis-regard of the policy and 25% posts of DSR are being filled by promotion and 75% are being filled from Army Officers which is violation of the rules. The petitioner claims that he is entitled to the promotion as is guaranteed by the Constitution and the direction of respondents is in violation of Articles 1 to 14, 18, 30 to 40, 178, 199 and 227 of the Constitution. The petitioner's appeal has not been decided and he has not been afforded an opportunity of hearing.
It is also violation of human rights which require interference by this Court in writ jurisdiction.
3. Report and parawise comments were called for from the respondents. In para 4 of the report the Department has taken the stand that the petitioner was not promoted as he was given high average/average ACRs according to the Confidential Reports with the adverse remarks and details have been given which is reproduced as under:- "Para 4. Denied. He was given high average/average Annual Confidential Reports with the adverse remarks as per following details:- Year Initiating Senior Reporting Officer.Next Senior Reporting Officer.Adverse/Advisory Remarks.
1991 B B B Give priority to personal benefit.
1996 A B+ B+ Having not good reputation 1997 A A B+ Advised to desist from his personal motive.
1999 A B B+ Advised to keep working hard.
Required more effort in his job.
2000 B+ B+ Command and Control is sightly weak and advised to keep hard working.
Inspectors upto seniority serial 28 were promoted as Deputy Superintendent Rangers. The petitioner stand on seniority serial 39 and he was not promoted during 1998 being junior. He was.
Considered for promotion to the rank of Deputy Superintendent Rangers during 2000 and again during 2001 and his promotion was not approved by the competent authority due to weak record of service as compared to the Inspectors who were promoted as Deputy Superintendent Rangers.
His application to Director General, Pakistan Rangers for review of his case for promotion was considered but turned down and he was informed vide HQ Pakistan Rangers (Punjab) letter 'No. 1309/A/729, dated 20th June, 2000 and No. 1309/A/689, dated 18th May 2000. Copy of both the letters are enclosed as per Annex-A and B respectively. On 4th September, 2001 another application from petitioner was received at HQ Pakistan Rangers through Commandant Sutlej Rangers and he was informed through Sutlej Rangers vide Letter No. 1309/A/1646, dated 4th September, 2001 (Copy attached as Annex-C)".
4. Learned counsel for the petitioner has contended that no adverse entry is in the record of the petitioner and he has been wrongly ignored by the department with mala fide intention and ulterior motive. It is further contended that the average entry cannot be considered as adverse entry and denial to the petitioner for his promotion in the years 1998, 2000 and 2001 is illegal and unlawful and the petitioner is liable to be promoted while actions of the respondents be declared as illegal. It is further contended that 75% posts have to be filled by the promotion of Deputy Superintendent Rangers and the department may be directed to act according to the rules and not to take on deputation to fill 75% posts. It is further contended that the respondents be directed to make reply of the letters which were addressed to them as every one is bound to make the reply.
It is also contended that the writ petition is maintainable as petitioner has been wrongly deprived of promotion. It is further contended that the reply of the respondents is evasive under Order 8 of the CPC. It is further contended that the respondents have denied the petitioner the rights which are given to him under the Constitution. It is further contended that the written statement is unverified and may not be treated as written statement and the writ petition may be accepted. It is further contended that the petitioner has been discriminated by the respondents with mala fide intention and he may be considered w.e.f. 2000 for his promotion for the rank of DSR. It is further contended that the petitioner be treated in accordance with law and not in violation of the Constitution.
5. Mr. Sher Zaman, learned Deputy Attorney General who represents the respondents has been reiterated the stand of the department that the writ petition is not maintainable has argued otherwise that the writ petition of a civil servant who was not found eligible for promotion is maintainable as he has no remedy under Section 4 of the Federal Service Tribunals Act, to file the appeal against such decision and only writ is maintainable. However, it is contended on merits that in the year 1998 the petitioner was not promoted as he wa at serial No. 39 and only officers who fall within serial No. 28 were considered and promoted as Deputy Superintendent Ranges while in 2000 and 2001 his promotion was not approved by the competent authority due to the weak record of service as compared to the Inspectors who-were promoted. As far as the allegation that he filed appeals but have not been decided it has been contended-that the appeals were dismissed and the petitioner was-informed vide letter dated 24.9.2001. It is further contended that the promotion is governed by sub-rule (3)-of Rule 8 of Pakistan Rangers and Recruitment Rules, 1968 in which the criteria laid down for promotion is seniority-cum-fitness hence the petitioner has no right to claim Promotion on the basis of seniority alone. It is further contended that the department has come to the conclusion that the petitioner was not fit person to be promoted and this Court cannot substitute its own opinion over the opinion of the competent authority. It is further contended that it is a question of fact that whether the petitioner was fit for promotion or not which cannot be resolved in writ jurisdiction.
6. I have heard the arguments of the learned counsel for the parties and also perused the contents of the writ petition alongwith its annexures as also the written statement and report and parawise comments alongwith its annexures. In para 4 of the report and comments the reasons for not promoting the petitioner as Deputy Superintendent Rangers in 1998 have been given that the petitioner was at serial No. 39 and only 28 officials on the seniority list were considered. There was justification for not considering the petitioner for promotion in the year 1998 but I find that there was no justification. With the respondents for not considering the case of the petitioner for promotion due to the bad record which has been reproduced in para 4 in the years 2000 and 2001.
Admittedly there is no adverse entry against the petitioner. His Initiating Officer, Senior Reporting Officer and Next Senior Reporting Officer has given him B Grade and remarked "give priority to personal benefit", according to ACR for the year 1994. ACR for the year 1996 shows that the Initiating Officer has given Grade A while Senior Reporting Officer B+ and Next Senior Reporting Officer (Grade B+) but gave remarks "having not good reputation". This entry could not be considered as the last 3 ACRs have to be considered. In the year 1997 the petitioner was given A, A and B+ reports.
In the year 1999 he was awarded A, B+ and B+ reports. In the year 1999 he was awarded A, B+ and B+ reports. Similarly in the year 2000 was graded "B". In such circumstances the reports given in the year 1994 cannot be made basis for not promoting the petitioner as only the reports of last three years have to be considered at the time of promotion of a civil servant. I have noticed that there is no adverse entry is the last three reports of the petitioner prior to 2000 and 2001 and the average remarks in the ACRs. Are not to be considered as adverse entries as is laid down in Federation of Pakistan and others v. Muhammad Qaiser Hayat Khan (1994 SCMR page 544) in which it has been held that the denial of move-over to BS-18 on the ground that the civil servant having earned "average" ACRs in the preceding five years was not entitled to grant of move-over. It was held that the average is not an adverse entry and civil servant cannot be denied his promotion or mover over in the next Grade. The basis judgment in this regard is Muhammad Anwar v. The Secretary Establishment Division, Rawalpindi and 2 others (PLD 1992 S.C. 144) in which it has been held that the average report in the ACRs will not be considered as adverse entry and the petitioner cannot be denied promotion or move-over in the next Grade due to average report. The relevant portion is reproduced as under:- "Leave to appeal was granted to examine the effect of the decision of the Tribunal in the case of Mumtaz A.I Khan v. Secretary, Establishment Division (Appeal Np. 163(R)/1986) wherein the same Service Tribunal had allowed move-over from BPS-18 to BPS-19 to the appellant therein who had earned five average reports."
"In the present case undoubtedly the appellant had to his credit two "good" reports, the remaining three reports were "average". Accordingly, looked at from this angle there being no impediment, move-over had to be granted to him. The entire picture regarding Government instructions in this behalf was not taken into account by the Tribunal and thus this appeal merits to be allowed on this ground alone."
The petitioner has not obtained any adverse entry which has been treated as adverse by the respondents for ignoring him for promotion in the years 2000 and 2001 by treating average remarks as adverse remarks hence I have no option except to accept this petition and direct the respondents to consider the petitioner for promotion as in the years 2000 and 2001 he was wrong:) superseded and not promoted under the garb of average remarks with effect from 2000. The respondents are also directed to make the reply of the letters addressed by the employees in future for the redressal of their grievances without any inordinate delay. The respondents are also directed to act according to the rules and not to violate the same as the Supreme Court of Pakistan in Zahid Akhtar's case reported in "PLD 1995 S.C. Page 530" has held that the Government policies are to be followed by the Department having attained the status of law and the public functionaries are bound to follow the same. It has also been held in judgments reported as "1989 SCMR page 353", "PLD 1970 S.C. Page 453" and "PLD 1982 Kar. Page 33" that the departments are bound to follow the instructions.
7. For the foregoing discussion this petition is accepted leaving the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.