' The petitioner has filed this writ petition with the prayer that the direction be issued to the respondents to the extent that the petitioner be promoted for the post in question from the date when his juniors were promoted.
2. The learned counsel of the petitioner submits that action of the respondent is hit by Article 25 of the Constitution as the respondents promoted Captain Jehanzeb Khan and Fawad Hassan Fawad, whose cases were exactly similar to the case of the petitioner. He further submits that the petitioner is legible in the terms of rules and regulations of the respondents to be promoted qua the post in question in view of annexures attached with writ petition. The petitioner has filed this Constitutional petition as the respondents did not consider the case of the petitioner as the petitioner was not found suitable to be promoted qua the post in question, therefore, the writ petition is maintainable.
In support of his contention, he relied upon "Abdul Wahab Khan v. Government of the Punjab and 3 others" (PLD 1989 SC 508) and Muhammad Raees v. Government of Balochistan (1995 PLC (C.S.)
151). He further submits that the respondents deferred the case of the petitioner in violation of the instructions and guideline issued by the competent authority. He relied upon the instructions dated 13-8-1998, 20-9-2000, 19-2-2001 and 3-7-2001 respectively.
3. The learned law officer submits that the petitioner has filed an appeal before the Services Tribunal qua the same subject-matter and relief, therefore, the writ petition is not maintainable. He further submits that the question of eligibility of the petitioner is involved in the present case as is evident from the contents of the writ petition and report and parawise comments, therefore, the writ petition is not maintainable in view of bar contained in Article 212 of the Constitution read with section 4 of the Service Tribunals Act. In support of his contention, he relied upon the following judgments:-- ' Government of the Punjab and others v. Capt. Rtd. Muhammad Mushtaq (2000 SCMR 1504); Shafi Muhammad Mughal v. Secretary Estab. Division and others (2001 SCMR 1446); Dr. Muhammad Salman Waris v. Dr. Naeem Akhtar and others (PLD 1997 SC 382) and Muhammad Anees v. Abdul Haseeb (PLC 1994 SC 539).
' He further submits that even the petitioner has not a good case on merit as the petitioner did not perform the duties against active assignment. The petitioner is still on leave for higher education.
The petitioner was deferred on account of absence of his performance. The petitioner was successively considered for promotion qua the post in question in the meetings held by the Board on 22-3-1999, 26-8-2000 and 14-7-2001 and deferred his case with cogent reasons.
4. The learned counsel of the petitioner in rebuttal submits that the question of eligibility of the petitioner is not involved in this case as the respondents considered the petitioner's eligibility and considered the case of the petitioner that the petitioner was not promoted on account of non- suitability, therefore, the petitioner has no other alternative remedy to file an appeal before the Service Tribunal.
5. I have given my anxious .Consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is better and appropriate to reproduce the prayer clause to resolve the controversy between the parties:-- "It is most respectfully prayed that the respondents may be directed to implement the promotion policy, duly approved by President of Pakistan, with a consequential relief of promotion of petitioner to B.S. 19 with effect from 31-5-1999, i,e, the date on which Mr. Ijaz Ali Khan, six places junior to the petitioner was promoted to such grade.
' It is further prayed that pending disposal of the writ petition, the officers junior to the petitioner in D.M.G. Group especially those who were approved for promotion to BS 19 in meeting held in December, 2001 to clear deferred cases of promotion, may not be promoted and status-quo in this respect may be granted."
Mere reading of the prayer clause clearly reveals that the petitioner wants proforma promotion through this Constitutional petition. The writ petiti3n qua proforma promotion is not maintainable in view of law laid down by the Honourable Supreme Court in Mrs. Ageela Asghar Ali and others v.
Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118). It is also admitted fact that the petitioner has already filed an appeal before the Service Tribunal, which is pending adjudication. In this view of the matter, the Constitutional petition is not maintainable in view of law laid down by the Honourable Supreme Court in Ch. Tanbir Ahmad Siddiky, v. Province of the East Pakistan and others (PLD 1968 SC 185). The judgment cited by the learned counsel of the petitioner is distinguished on facts and law, wherein the question of proforma promotion was not involved; whereas in the present case, the petitioner has mentioned above the claim of petitioner in this petition pertains to proforma promotion through this Constitution petition which is evident from the prayer clause.
' In view of what has been discussed above, this writ petition has no merit and the same is dismissed.