Ch. MUHAMMAD ARSHAD and 8 others vs GOVERNMENT OF PUNJAB through Board of Revenue, Punjab Lahore and 3 others
The petitioners sought leave to appeal against a judgment of the Lahore High Court that allowed a revision petition and dismissed the petitioners' civil suit, thereby reversing the concurrent findings of the two lower courts. The core legal question concerned whether promotions granted by the Commissioner without the intervention of the Departmental Promotion Committee and in violation of age relaxation embargoes created vested rights requiring a pre-decisional hearing before being set aside. The Supreme Court held that an order of appointment or promotion can only clothe an appointee with rights if it is competently passed. Since the Commissioner lacked the competence to grant age relaxation and bypass the Departmental Promotion Committee, the promotions were tainted and amounted merely to ad hoc appointments, which could be substituted by regular ones without requiring a prior hearing to the beneficiaries. The petition for leave to appeal was accordingly dismissed.
- Does an incompetent promotion order create a vested right requiring a prior hearing before being set aside?
- Can a Commissioner grant age relaxation in promotions contrary to government embargoes?
- What is the legal status of a promotion made without routing the case through the Departmental Promotion Committee?
- Is a representation regarding the legality of a promotion barred under Section 21 of the Civil Servants Act?
- Section 21, Civil Servants Act
' SHAFIUR RAHMAN, J.---The petitioners seek leave to appeal against the judgment of the Lahore High Court, dated 25-5-1987 whereby Revision petition arising out of a Civil Suit was allowed and the suit filed by the petitioners was dismissed reversing the judgments of the two Courts below.
2. The Commissioner of Lahore Division by an order, dated 16-9-1975 made certain promotions including that of the petitioners relaxing the age limit in favour of some of them. The Board 'of Revenue on a number of representations received against this order found the following two defects in it,--- "(i) Commissioner, Lahore Division was not competent to grant relaxation of age in favour of Messrs Inayat Ullah, Abdul Majid, Bashir Ahmad, Ghulam Rasool, Muhammad Jamil, Nawab Din, Muhammad Hussain. And Nawazish Ali Shah, in view of the embargo imposed by the Government of the Punjab in the Services and General Administration Department vide their letter No,SORII (S&GAD) 4-37/74, dated 17-7-1975 read with their letter No,SORI (S&GAD) 9-20/75, dated 5-11-1975.
(ii) The promotion case should have been proceeded through the Departmental Promotion Committee, as required in Govt. Of the Punjab, Services, General Administration Department's Notification No,SOR111-6-3/73, dated 12-11-1974 read with their Notification No, SOR-III-6-3/73, dated 18-3-1975."
' It ordered that the entire promotion case should be placed before the Departmental Promotion Committee which should de novo consider the cases seniority-wise of all such officers who were eligible for promotion. This Order of the Member, Board of Revenue was challenged in a Civil Suit before the Court which decreed the claim on the ground that the Petitioners, the beneficiaries of the order were not impleaded and heard by the Board of Revenue. This judgment was affirmed by the appellate Court but reversed by the High Court.
3. What the learned counsel for the petitioners contended is that a hearing to the petitioners was necessary before the order of their promotion was set aside. It was also contended that the Commissioner was the appointing authority and the petitioners having no control over the observance of law by him could not be denied the benefit of order only because some procedural irregularities have been committed. Finally, it was submitted that a number of years have passed to that promotion order and the beneficiaries have subsequently earned more promotions and an interference at this stage will unsettle their positions when deaths and retirements have also taken place.
4, An order of appointment can clothe the appointee with rights only if it is competently passed and not otherwise. In the case in hand the Commissioner had always the duty to act on the advice of the Departmental Promotion Committee.
' The sanctity and the position occupied by the Departmental Promotion Committee and its recommendations have been the subject-matter of fuller examination in the case of Islamic Republic of Pakistan v. Israrul Haq and 23 others PLD 1981 SC 531.
5. The taint from which the appointment of the petitioners suffered clothed them with no right to be heard and their appointment would on the definition of ad hoc appointment, could only be treated ad hoc and not regular. The consequences of such an appointment being that, these could always be substituted by regular appointments as provided for in the Civil Servants Act. The subsequent events have all been taken care of under those provisions of the Act.
6. The representation with regard to the legality of the promotion and its nature was not hit by the proviso to section 21, and the Board of Revenue could deal with it. No merit is found in the petition which is dismissed and leave to appeal is refused.