BASHIR AHMAD Versus GOVERNMENT OF KHYBER PAKHTUNKHWA
AHMAD ALI, J .----Through this constitutional petition the petitioner has called in question the vires of order 08.02.2017 as to dismissal of his departmental appeal and order dated 21.09.2016 regarding withdrawal of his promotion order and` prayed for restoration of his promotion order.
2. Facts essential for the disposal of present writ petition are that the petitioner was appointed as Katha Quli BPS-01 in the TMA Peshawar in the year 2007 initially on fixed pay however, his service was converted into regular cadre w.e.f. 22.04.2011. Thereafter, he worked as Acting Sanitary Supervisor and on 02.02.2016 he was promoted from BPS-01 to 04 as Sanitary Supervisor; henceforward he started to perform official duties as sanitary supervisor. But vide order dated 21.09.2016 his promotion order stood withdrawn and his departmental appeal was dismissed vide order dated 08.02.2017. Thus aggrieved of the order dated 21.09.2016 and 08.02.2017 petitioner filed present writ petition.
3. Respondents Nos.2 to 5 as well as Nos.6 and 7 filed their separate comments. Respondents Nos.2 to 5 are the main contesting respondents and in their comments vehemently denied the claim of petitioner mainly on the ground that the promotion of petitioner was out of the turn whereby senior employees were deprived of their right of promotion. It was also contended that in-fact promotion of the petitioner was due to the favouritism by the then Town Municipal Officer on the alleged recommendation of Departmental Promotion Committee whereas, in-fact no such committee was ever constituted.
4. Counsel for the petitioner argued that the petitioner was a competent and efficient employee and for this reason he was initially assigned acting charge of the Sanitary Supervisor and thereafter he was awarded promotion fully in accordance with law by the then Town Municipal Officer. Even after his promotion too, the petitioner was performing his official duties efficiently and proficiently but respondents due to mala fide have withdrawn the promotion of petition which has caused great injustice to him.
5. Conversely the learned counsel appearing on behalf of respondents argued that there are so many senior officials than the petitioner serving on the post of Katha Coolies and despite their eligibility and entitlement for promotion as sanitary supervisor, the petitioner despite being junior-most Katha Coolie was awarded out of the turn promotion only on the basis of favouritism. He maintained that there were simultaneous complaints from his senior colleagues and therefore, the promotion order of petitioner was rightly withdrawn. Petitioner should have to wait for his actual turn of promotion':
6. Arguments heard and record perused.
7. Perusal of record reveals that the petitioner was inducted into service as Katha Coolie on fixed pay in the year 2007 and then his services along with other employees were regularized vide Order bearing No.1088-1157/Admin.T-II dated 22.04.2011 and the name of petitioner is available at serial No.43.
8. Respondents Nos.2 to 5, along with their comments, have furnished the copy of Tentative Seniority List of Katha Collies as stood on 01.01.2018. This seniority list shows a number of employees appointed in the years 2004, 2006 and the name of petitioner is available at serial No.14 of the Seniority List with date of appointed as 01.02.2007 and date of regularization as 23.04.2011. Petitioner was not able to justify his claim of promotion at the cost of the career of his senior thirteen employees and he cannot be promoted in preference to his senior employees. Petitioner is not fair and impartial in his claim and has not come to the court with clean hand; then in view of the maxim "He who seeks equity must do equity" petitioner cannot be awarded the post of Sanitary Supervisor as it is determinantal to the interests of other senior employees. The august Apex Court in the reported case of Shahid Pervez's case (2017 SCMR 206) was of the view that out of turn promotion to police personnel on basis of gallantry award was not only against the Constitution, but also against the Injunctions of Islam. Each out of turn promotion necessarily damaged the career of a corresponding deserving officer. Acts of gallantly did not justify out-of-turn promotions as they necessarily lead to impingement of the fundamental rights of fellow officers in terms of blocking their smooth progression of careers and impinging their respect and honour and thereby the august Supreme Court directed the concerned officials and authorities to fix the seniority of all the police officers who were given out of turn promotion along with their batch-mates, as if they were never given out of turn promotion. Further guidance derived from the judgment of august Supreme Court of Pakistan reported as 2017 PLC (C.S.) 725 titled "Regional Police Officer Gujranwala and another v. Ejaz Ahmad and others".
9. This Court has already held in the case titled "Abdul Khanan v. Government of Khyber Pakhtunkhwa through Chief Secretary and 4 others" (2015 PLC (C.S.) 159 Peshawar High Court) out of turn promotion was not regular promotion but a tool of reward in case of exceptional circumstances. This type of promotion involved Fundamental Rights such as equality of citizens before law and entitlement to equal protection of law under Article 25 of the Constitution. Out of turn promotion was against the Constitution and injunctions of Islam. Promotion of official for the purpose of encouraging performance should not negatively affect the rights of other similarly placed officials.
10. Out of turn promotion of petitioner was not only against the Constitution, but also against the Injunctions of Islam. Performing duties as Sanitary Supervisor on acting charge cannot justify the claim of petitioner for his promotion in preference to his senior employees. His promotion order was rightly withdrawn as his promotion was inherently destructive of the rights of his senior colleagues who, being senior were entitled to be considered for promotion prior to the petitioner, but said senior officials suffered for no fault of their own when they were bypassed by the petitioner.
11. For the reason mentioned above, this constitutional petition is bereft of merits and therefore, dismissed with no order as to costs.
ZC/20/P Petition dismissed.