MUHAMMAD AKBAR KHAN DURRANI Versus FEDERATION OF PAKISTAN
ORDER
SHAHNAWAZ TARIQ, J.--- Through captioned Constitutional Petition, petitioner Muhammad Akbar Khan Durrani has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with prayer to declare that letters of explanation mentioned in Para No.7 of memo. of this petition were issued incompetently, as the same are void ab-initio and mala fide, and respondents may be directed to award/ consider his promotion for next post according to promotion policy and restrain the respondents not to take any coercive action regarding his promotion for next scale.
2. Be that as it may, in the support of instant petition, Mr. Najeeb Jamali, learned counsel for the petitioner has vehemently contended that due to excellent service career, petitioner was promoted in BPS-18 as Executive Engineer (XEN) in the year 2007, and thereafter in the year 2011-12, he was upgraded for the next post in BPS-19; that petitioner has been performing his duties sincerely and entirely to the satisfaction of his superiors, but respondent No.6 in the year 2015-16, being Chief Executive Officer has issued 12 letters of explanation to the petitioner within a year without any fault. Learned Counsel further emphasized that petitioner was never issued any explanation or show-cause notice nor any minor penalty has been imposed upon the petitioner, and even petitioner was never callad in connection with all the above letters of explanation. Learned counsel submitted that the ACR forms were filled by the petitioner and submitted well in time but the same were not transmitted to the Head Office for placing the same at the time of holding of D.P.C. by the respondent No.6 with ulterior motive only to deprive the petitioner from his promotion to next scale. Learned Counsel lastly contended that petitioner smelling mala fide on the part of the respondents, has approached this Court but despite issuance of notices by this Court and statement made by counsel for respondents, Departmental Promotion meeting was held on 12.08.2016 and on lame excuse his case was not considered due to pendency of letters of explanation, hence respondents may be directed to consider the case of petitioner for promotion on merits. Learned Counsel has relied on 2011 PLC (C.S.) 535, 2012 PLC (C.S.) 1043, 2016 PLC (C.S.) 569, 2015 PLC (C.S.) 923, certified copies of order dated 05.12.2014 in C. P. No.D-792/2014, and order dated 06.11.2008 in C.P. No.D-449/2007.
3. While refuting the above submissions, Mr. Muhammad Arshad S. Pathan, learned Counsel for respondents files objections along with certain documents and simple copy of the minutes of meeting which are taken on record, copies thereof supplied to learned Counsel for petitioner. Learned Counsel submitted that case of the petitioner was considered by the Departmental Promotion Committee but due to pendency of series of letters of explanation, his promotion case was deferred, but copy of minutes of said meeting could not be filed, as directed by the Court, for want of signatures of the members, however, in support of said stance Mr. Akhlaq Ahmed Assistant Director (CM) PEPCO has filed his affidavit which is placed or record. Learned Counsel next submitted that respondents will decide all the letters of explanation within four weeks and thereafter as and when the meeting of Departmental Promotion Committee will be convened, petitioner's case will be decided in view of outcome of disciplinary proceedings; that petitioner has not submitted his replies within time, but even then no adverse order has been passed against him, which reflects that respondents have no ulterior motives against the petitioner.
4. Mr. Aurangzeb Talpur, learned Standing Counsel adopted the arguments advanced by the learned Counsel for respondents.
5. Heard learned Counsel for the parties and perused the record, which emanates that petitioner is presently posted as Superintending Engineer (Operations), HESCO, Circle Hyderabad, while in the year 2015-16, respondent No.6 was posted as Chief Executive Officer, HESCO, Hyderabad. Conversely, petitioner submitted his ACR/PERs forms, so that his case may be placed before Departmental Promotion Committee but respondent No.6 without any justification did not transmit said ACRs/PERs forms to the Headquarter at Lahore for consideration of his next promotion. It is further averred that prior to the posting of respondent No.6 at present post, during the entire period of service of petitioner, neither any letter of explanation nor any show-cause has ever been issued to him, nevertheless within the period of 09/10 months of the subordination of respondent No.6, the petitioner has been issued 12 letters of explanation by the respondent No.6 and the same are still pending and no action has been initiated by him to decide the fate of all the letters of explanation, though there was no impediment for passing any appropriate order upon said letters of explanation. The demeanor of respondent No.6 reflects mala fide and ulterior motives on his part, thus he caused deliberate delay to decide the fate of those letters with sole object to deprive the petitioner from his promotion to next scale. In the case of Maj. Ziaul Hassan, Home Secretary and others v. Miss. Naseem Chaudhry (2000 SCMR 645), the honourable Supreme Court of Pakistan has observed that "mere fact that some disciplinary proceedings were pending against the civil servants was not a sufficient ground to disregard the order passed by the Supreme Court. Promotion of civil servant, however, would not debar the authorities to continue with the disciplinary proceedings against the civil servant, if any, justly, fairly and in accordance with law". In the case of Hammad Raza Qureshi v. Departmental Promotion Committee, Punjab (2008 PLC (C.S.) 551) the honourable Supreme Court of Pakistan has observed that "pendency of disciplinary proceedings against a civil servant is no valid ground for not considering such civil servant for promotion".
6. It is worthwhile to refer that learned counsel for respondents on 01.09.2016 made a categorical statement that neither any meeting of departmental promotion committee was convened nor any date for departmental promotion meeting has been scheduled in near future, thus in view of said statement, an injunctive order was passed by this Court on 01.09.2016 that respondents shall not issue any notification in continuation of DPC, if any, held by them in view of notification dated 10.08.2016, and learned counsel for the respondents was directed to file a clear statement that if any meeting DPC has been convened by the respondents or not and if such meeting has been convened, a copy of minutes of the meeting shall be filed on next date before this Court for the perusal.
7. Indeed, the petitioner has earned good evaluation remarks in his ACRs/PERs throughout his service career and prior to the posting of respondent No.6 as Chief Executive Officer HESCO, Hyderabad, neither any show-cause notice nor any letter of explanation has ever been issued and even no material has been placed by the respondents that any adverse remarks were ever passed against the petitioner, and this aspect on the contrary enshrines his satisfactory performance. It is significant to mention that respondents till date have not issued any show-cause notice to the petitioner nor any departmental inquiry has been initiated against him in support of the allegations leveled in all the letters of explanation. Perusal further emanates that seniors and juniors colleagues of the petitioner have been considered and promoted to next grade but the case of promotion of the petitioner was not considered on merits and same was deferred due to pendency of above referred letters of explanation. It is well settled that mere issuance of letters of explanation or show-cause notice or initiation of departmental inquiry or even lodgment of any FIR against any Civil Servant, shall not deprive him from his next promotion, if he is otherwise qualified and meets all the requisite formalities for consideration to be promoted in next grade. Similarly, there is neither any bar nor any impediment upon the department to proceed further and simultaneously initiate disciplinary proceedings against any Civil Servant in accordance with law.
8. While adverting to the merits of instant petition, we are clear in our minds that petitioner has been ignored erroneously during the departmental promotion meeting held on 12.08.2016, and he has been punished by denying his consideration of promotion without establishing any charge. The impugned departmental promotion proceedings by deferring the petitioner and considering other officers are without lawful authority and of no legal effect. Consequently, respondents have no valid cause or justification to defer the case of petitioner, thus his case shall be considered according to the seniority list and departmental promotion meeting convened on 12.08.2016 will not affect the original seniority list and petitioner shall be considered at same serial number.
9. Considering the above facts and circumstances, instant constitutional petition stands disposed of and the respondents are directed to convene the meeting of Departmental Promotion Committee within four weeks and case of the petitioner shall be examined strictly on merits irrespective of pendency of letters of explanation. However, respondents may proceed with letters of explanation issued to the petitioner simultaneously in accordance with law.
These are the reasons for short order dated 06.10.2016 passed by us, whereby instant petition was allowed, which is reproduced as under:--
"Learned Counsel for respondents/PEPCO-HESCO files written statement along with series of documents, which is taken on record, copy thereof supplies to learned Counsel for petitioner. Learned Counsel for petitioner, learned Standing Counsel and learned Counsel for respondents/PEPCO-HESCO concluded their arguments. For the reason to be recorded later on, instant petition is allowed. Respondents are directed to hold DPC and decide the case of the petitioner for his promotion within a period of one month, however, strictly on merits"
ZC/M-184/Sindh Petition disposed of.