2007 PLP (C (PLC(CS))

IQBAL HAMEEDUR RAHMAN, J.

Through the instant writ petition, the petitioner seeks the grant of pro forma promotion.

2. Brief facts necessary for the determination of the instant writ petition are that after qualifying M.A., the petitioner got a job in Zakat and Ushar Department on 25-11-1980 and presently he was working as Assistant in the office of D.C.O. Vehari.

3. According to the final seniority list of the Assistants of Punjab Zakat Department as on 5-7-1988, the petitioner was listed at Serial No.8 while Naseer Ahmad Daula, Shafat Pervaiz, Waseem Ayoub and Shafqat Pervaiz were listed at Serial Nos.11, 13, 21 and

23. They were all junior Assistants than the petitioner but they have been promoted by the Department in spite of the fact that the petitioner was recommended by the Administrator Zakat and Ushar Department/respondent No.2 vide his letter No.AS&U-1522/97, dated 11-11-1997, in which it was clearly recommended that the petitioner deserves pro forma promotion.

4. The petitioner being aggrieved moved an application before the respondents for the redressal of his grievance and claimed that he being senior according to the seniority list is entitled to the pro forma' promotion, when his junior in the seniority list at Serial No.11, namely, Naseer Ahmad Daula, had been promoted in relaxation of the existing rules for pro forma promotion but the respondents did not pay any heed to the grievance of the petitioner. The petitioner was constrained to file Writ Petition No.2196 of 2005 in this Court seeking a direction to respondent No.1 to take decision on his application. Accordingly, a direction was issued to respondent No.1 vide this Court's order, dated 21-4-2005. The petitioner appeared before respondent No.1 who rejected the application of the petitioner through order, dated 7-6-2005. Hence this writ petition.

5. Comments were called from the respondent-Department and which have been received. The stand of the respondent-Department is that the petitioner joined the Department in the capacity of Assistant on 25-11-1980. He was declared surplus and his services were placed on the strength of Services and General Administration Department on 30-11-2001. He is no more an employee of Zakat and Ushar Department and his parent department now is Services and General Administration Department. The final seniority list dated 27-6-1994 was issued as stood on 5-7-1988 as per advice of Regulation Wing of S&GAD. It was advised that Zakat Department is one functional unit and separate seniority list cannot be maintained in one unit. The petitioner is claiming seniority against those promotions which are itself not covered under the rules and these promotions are liable to be reverted back. The claim of the petitioner is not based on any legal foundation. As the petitioner has failed to move the Service Tribunal within the period of limitation laid down in the law, therefore, this writ petition is not maintainable and is liable to be dismissed.

6. In the final seniority list of Assistants of Punjab Zakat Department as stood on 5-7-1988 annexed with the comments, the petitioner was listed at Serial No.8. From the perusal of the minutes of the meeting of D.P.C. held on 24-3-2004, it is crystal clear that Naseer Ahmad Daula who was at Serial No.11 of the Final Seniority List, had been recommended for the grant of pro forma promotion due to the reason that his case is that of hardship because three persons junior to him, namely, Shafat Pervaiz, Waseem Ayoub and Shafqat Pervaiz, had been promoted on the basis of separate seniority list maintained by the Headquarter and he was allowed financial benefits. Later on, vide Order No.SO(E)Z&U/5-27/99, dated 22-9-2004, Naseer Ahmad Daula in relaxation of the existing pro forma promotion policy by the Chief Minister Punjab, was granted pro forma promotion w.e.f. 21-7-1993 for financial benefits.

7. The case of the petitioner falls not only on the same footing but rather on better footing that of Naseer Ahmad Daula/respondent No.3 as the petitioner was listed at Serial No.8 of the above-mentioned seniority list in which Naseer Ahmad Daula/respondent No.3 was at Serial No.11. The contention of the respondents that what the petitioner is claiming is itself not covered under the rules cannot be accepted. The petitioner also deserves relaxation granted to respondent No.3 Naseer Ahmad Daula who has also been superseded by not three but four persons. The public functionaries while taking decision on such-like cases are required to deal with other similar cases on the same footing rather than to show favouritism to one person and neglect the other. The same promotes unfairness and shown the biasness of the public functionaries. The same cannot be promoted. The petitioner's case should be considered on the same footings and he should have also been granted pro forma promotion along with Naseer Ahmad Daula/respondent No.3.

8. Further the contention of the respondents that this writ petition is not maintainable as the matter should have been agitated by the petitioner before the Service Tribunal, is contrary to rule 4(2) proviso II of the Civil Servants (Appeal) Rules, 1977 as in the matters pertaining to fitness or otherwise, appeal does not lie, therefore, this writ petition is maintainable. In this regard reliance is placed upon 2001 SCMR 1446, in which it has been held as under:-- "Service Tribunals Act, section 4(1)

Civil Servants (Appeal) Rules, 1977, R.4(2), proviso II

Fitness of civil servant

Determination

Service Tribunal, jurisdiction of

Scope

Service Tribunal had no jurisdiction against order or decision of Departmental Authority determining the fitness or otherwise of a person for promotion to higher post or grade." Reliance is also placed upon PLD 1994 SC 539.

9. In view of the above circumstances, this writ petition is accepted and the impugned order, dated 7-6-2005 is set aside. The respondents are directed to grant pro forma promotion to the petitioner. H.B.T./M-30/L Petition accepted.