' This is rather an unfortunate case. Somewhat admitted facts of this case are that the case of the petitioner for promotion from BS-18 to BS-19 was considered in the first instance by the Selection Board and promotion was declined on the ground that a minor penalty stood imposed upon the petitioner. Feeling aggrieved the petitioner filed Writ Petition No,2850 of 2001 in this Court. The respondents took the plea that the petitioner supersession was recommended on the ground that a minor penalty of stoppage of one increment for two years, on account of misconduct had been imposed. Be that as it may, the writ petition was disposed of on 13-2-2002 with direction to the Secretary Establishment Division, to decide the appeal of the petitioner within two months. The said appeal was rejected on 8-4-2002. Meanwhile, the petitioner had filed CP. No,450 of 2002 in the Hon'ble Supreme Court of Pakistan. This CP was heard on 2-5 -2002. It was converted into an appeal and was allowed. I deem it necessary to reproduce here last three paragraphs of the said dictum.
"3. We have heard the parties' counsel and have carefully gone through the relevant provisions of law particularly rule 4(1)(a)(ii) of the Government Servants (Efficiency and Discipline) Rules, 1973 and have also perused the available record maintained by the Central Election Board, during its meeting while considering the case of petitioner for promotion from P-18 to B-19. It is an admitted fact that petitioner was awarded minor penalty of stoppage of increment, therefore, in our opinion his promotion could have not been withheld, merely for such reasons.
4. When we confronted learned Deputy Attorney-General with above legal position, he candidly conceded and stated that the General Selection Board was not right in decling promotion to the petitioner on this score. In such circumstances, he suggested that in all fairness, case be remanded to Central Selection Board for considering afresh the petitioner's case of promotion.
5. Learned counsel appearing for petitioner expressed apprehension against the department and stated that because on account of illegitimate reasons, promotion of petitioner has already been delayed, therefore, instead of remanding the case, it may be decided by this Court.
' We are not inclined to agree with the learned counsel for petitioner because it is for the Central Selection Board to consider the case of petitioner's promotion after taking into consideration the requisite manifestation, qualification etc. However, we would like to observe that the department as well as Central Selection Board shall consider the case of petitioner's promotion independently, without being influenced in any manner from the earlier order and strictly in accordance with the relevant provisions of law.
' Thus for the forgoing reasons, petition is converted into appeal and allowed, as a result whereof, impugned order passed by the. High Court is set aside and case is remanded to the Central Selection Board for taking into consideration the case of petitioner's promotion from B-18 to B-19 as per requisite quantification, qualification, etc, strictly in accordance with the rules, in view of the observation made hereinabove, as far as possible within the period of three months."
' Thereafter the case was taken up by the Selection Board who again found him unfit for promotion.
The decision was conveyed to the petitioner by the Establishment Division vide its order dated 31-7- 2002. The petitioner then filed criminal original before the Hon'ble Supreme Court of Pakistan which was not pressed and disposed of as such on 19-11-2002. The petitioner has again approached this Court with the present writ petition.
2. Comments were called for and were filed. Now according to the position taken in these comments the said Board recommended the petitoner as unfit for promotion to the selection post of Deputy Secretary on the basis of record of F.I.A. In which charges of corruption were established against the petitioner and not on the ground of imposition of penalty.
3. The petitioner when confronted with the said stands taken by the respondents stated that the minor penalty was imposed on the basis of said report. The writ petition was accordingly admitted to bearing vide order dated 23-4-2003.
4. Learned counsel for the petitioner contends that Hon'ble Supreme ours had declared in categorical terms that the said minor penalty cannot be made ground lb' withholding promotion.
He draws my attention to the show-cause notice dated 6-6-2000 served upon the petitioner prior to the imposition of the said penalty and this notice refers to the report of F.I.A. Learned Deputy Attorney-General, on the other hand, contends that the Board was competent to take into consideration the said report and formulated its opinion accordingly. Learned Deputy Attorney- General also states that the fact that the criminal original was not pressed before the Hon'ble Supreme Court would go to show that the petitioner has accepted the said position.
5. I have duly considered the respective contentions of the learned counsel for petitioner and learned Law Officer. As stated by me above, facts of this case are not disputed. Now there is no dispute that the minor penalty was imposed upon the petitioner. In the first proceedings he was superseded on the sole ground that the said minor penalty stood imposed. The Hon'ble Supreme Court in the judgment, reproduced in part by me above, held that the promotion could not have been withheld only on the said ground. The case was sent back to the Selection Board and to ward off the apprehension expressed by the petitioner, the Board as well as department were directed to consider the case independently and without being influenced in any manner from the earlier order and strictly in accordance with relevant provisions of law. The case was taken up by the Board and respondents have reported that Board proceeded to declare him unfit on the basis of report of F.I.A. In which charges of corruption were established against the petitioner.
6. Learned Deputy Attorney-General is not at all in a position to deny the contents of the show- cause notice that was issued to the petitioner on 6-6-2000 before the said minor penalty was imposed. Now show cause-notice refers to the inquiry conducted by the F.I.A. And all charges are based on the said report. It was thought fit not to hold an inquiry and petitioner was called upon to answer the charges. However, after finalization of the disciplinary proceedings the minor penalty was imposed vide Notification No,F-1/99- Admn dated 24-2-2001. The penalty was imposed of stoppage/withholding of one increment for a period of two years w,e,f, 1-12-2000 without any financial future effects later on.
7. In my humble opinion the department or Selection Board have taken upon themselves to by- pass the said inter panes decision of the Hon'ble Supreme Court. The position taken by the respondents and being reiterated by the learned Deputy Attorney General is not at all tenable. If authorities are allowed to get way with such deliberate attempts to flout the judgment delivered after hearing both the parties, this will result in chaos. To my mind, the position taken by the respondents is tantamount to saying that in a given case an accused may be acquitted by a Court but he may be sentenced later on notwithstanding the final acquittal of the Court but because one or other witnesses have made statement accusing the person acquitted of commission of an offence. Such a conduct is not to be countenanced at all. The fact that the petitioner did not press the criminal original before the Hon'ble Supreme Court of Pakistan does not at all mean that the said dictum duly laid down by the Hon'ble Supreme Court has vanished. This is not to be.
8. For all that has been discussed above, this writ petition is allowed and the case of the petitioner for being considered for promotion shall be deemed to be pending with the Selection Board. The case shall be put up by the respondent-department in the very next meeting of the Selection Board and Board shall proceed to consider the case of the petitioner in strict accordance with the judgment dated 3-5-2002 of the Hon'ble Supreme Court while converting C.P. No,450 of 2002 into an appeal and allowing the same. The Board of course will record its reasons and there shall not have any reference to the said minor penalty or any proceedings leading to the imposition of the same. The compliance to be reported to D.R (J.) of this Court.