MUHAMMD AFZAL KHAN vs GOVERNMENT OF PUNJAB through Secretary to Government of the Punjab, C&W Department and another

ORDER

' HAFIZ TARIQ NASIM, J.--- The backdrop of this writ petition is that the petitioner being senior most Executive Engineer BS-18 of the Communication Works Department, Government of Punjab was expecting his promotion as Superintending Engineer in BS-19 in the year 2003 but the was deferred.

In spite of his deferment he remained in the field for five long years when again on 23-5-2008 the petitioner's case of promotion was taken up by respondent No,1 who prepared working paper and placed it before the Provincial Selection Board, who recommended for deferment of the petitioner on the plea of pendency of some inquiry. The petitioner continuously persuaded for the redressal of his grievance since 2003 but with no result and finally filed this writ petition with the following prayer:-- "(I) Petition may kindly be accepted with costs.

(II) Respondents may kindly be directed to place the petitioner's case of promotion as Superintending Engineer in BS-19 before the Provincial Selection Board within a period of one month positively.

(III) Respondent No,2 who is the Chairman of Provincial Selection Board may very kindly be directed to consider Petitioner's promotion case fairly, justly and without being influenced by the pendency of any inquiry.

(IV) Respondents may kindly be further directed to consider the petitioner for promotion as Superintending Engineering in BS-19 from 9-7-2003 when the petitioner was eligible for such promotion and when his case was first placed before the Provincial Selection Board.

(V). Impugned show-cause notice dated 8-1-2004 and order of inquiry dated 5-9-2007 may kindly be set aside.

(VD. Petitioner may also kindly be granted such other relief/reliefs to which he is found entitled."

2. Learned counsel for the petitioner submits that so far prayer No, V in respect of setting aside of show-cause notice and order of enquiry is concerned, he does not press the same and it be treated deleted from the prayer clause. However, the learned counsel argued the case in respect of other prayers with vehemence and contends that the petitioner is being victimized with no fault of him, rather on extraneous consideration, with ulterior motive and malice and it is well-settled law that any action, which is based on mala fide cannot be termed as a legal action in the eye of law.

Further submits that mere pendency of enquiry cannot deprive the petitioner from his lawful right of fair consideration for further promotion. Learned counsel referred Zarar Khan v. Government of Sindh and others PLD 1980 SC 310, Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637, Maj. Ziaul Hassan, Home Secretary and others v. Mrs. Naseern Chaudhry 2000 SCMR 645, Ch. Yar Muhammad Durraiana v. Government of the Punjab and another 1992 PLC (C.S.) 95, Sh. Muhammad Riaz v. Government of the Punjab 2003 PLC (C.S.) 1496 and a recent judgment in Writ Petition No,2573 of 2008 titled as Sanjida Irshad v. Secretary Health and others, in support of this contentions.

3. On the other hand learned Assistant Advocate-General submits that consideration for promotion of course is right of a civil servant but no civil servant can ask for promotion as a matter of right.

Further submits that the petitioner's promotion case was repeatedly placed before the Punjab Selection Board but due to some cogent reasons the petitioner could not be promoted. However, being a deferred case the petitioner's case shall be reconsidered in the forthcoming PSB's meeting.

4. Arguments heard. Record perused.

5. There is no cavil from the proposition that the civil servant cannot claim promotion as a matter or right but it is also undisputed fact that it is an inalienable right of every civil servant that he be considered for promotion along with his batch mates when he fulfills eligibility criteria and it must be noted that consideration for promotion means a just and fair consideration and not as a matter of routine.

6. It is well-established law laid down by the apex Court that pendency of enquiry and even minor penalties cannot come in the way of promotion. In the present case the departmental representative, who produced the record did not disclose any penalty available in the petitioner's record except pendency of enquiry. However, when confronted with the sole question that how much time it should take to finalize the enquiry, no satisfactory reply could be given by the departmental representative.

7. Surprisingly keeping the civil servant continuously for a long period in facing certain enquiries and without concluding the proceedings for an indefinite period smacks arbitrariness and smells mala fides when now a days there is a specific provision that enquiry must be concluded in a specific time. Hanging sword on the heads of certain civil servants in the form of pendency of enquiry reflects only to deprive from their further lawful right of promotion, which can be termed an exploitation and nothing else because there is no bar on the part of administration to reach on logical conclusion and then impose penalty on that very civil servant if he is found guilty, when this part of the administration is unfettered then such like treatment, which is meted out to the petitioner cannot sustain in the eye of law.

8. In the attending circumstances, I have no other option except to allow the writ petition. The respondents are directed to place the petitioner's promotion case before the Provincial Selection Board within a period of two months positively from today and the PSB shall consider the petitioner's promotion case fairly, justly and particularly independent of pendency of enquiry if the same is not finalized on the day of consideration for promotion. The exercise must be concluded within two months and result thereof be conveyed to the Deputy Registrar (J.) of this Court. The writ petition is accepted in the above terms.