2011 PLP (C (PLC(CS))

SH. AZMAT SAEED, J.

The petitioner who is Inspector of the Punjab Police has filed the instant Constitutional petition seeking a direction for the implementation of the assurance given and the representation made by the representative of the respondent department before the Punjab Service Tribunal recorded in its order dated 9-5-2008.

2. Brief facts necessary for the adjudication of the lis at hand are; that aggrieved of the recommendation of the Departmental Promotion Committee meeting held on 6-5-2002 whereby Inspectors Junior to the present petitioner were promoted to the rank of DSP, the present petitioner after exhausting his departmental remedy invoked the jurisdiction of Punjab Service Tribunal through Appeal No.834 of 2003. The said appeal, after hearing the parties was decided vide order, dated 1-4-2004 with the direction that case of the petitioner be considered in the next meeting of Department Promotion Committee. The department had taken the plea that in view of the chequered personal record/A.C.Rs. the petitioner was not entitled to be promoted. In this behalf the present petitioner had taken a defence that various adverse remarks have not been conveyed to him and other adverse remarks had in fact been expunged and in the above backdrop it was directed by the Punjab Service Tribunal that the contentions of the petitioner in this behalf should be thoroughly examined. It was also observed that minor penalties would not stand in the way of his promotion.

3. It appears from the record that the case of the petitioner was once again placed before the Departmental Promotion Committee on' 30-4-2005 but the petitioner was not granted promotion, whereupon, the petitioner invoked the jurisdiction of this Court through a constitutional petition which was disposed of apparently on the assurance and undertaking of the respondents that the case of the petitioner will be considered in the next meeting of the Departmental Promotion Committee. Whereafter, the petitioner also filed a contempt application before this Court which was disposed of with a direction to the petitioner to seek his remedy before the Punjab Service Tribunal. Thereafter, the petitioner filed Appeal No.2409 of 2005 which was decided by the Punjab Service Tribunal vide its judgment, dated 8-3-2006 in the following terms:-- "(2) Arguments have been heard and record perused. It appears from the record that the name of appellant along with others (his juniors and seniors) was considered by the Departmental Promotion Committee in its meetings held on 6-5-2002, 21-7-2003, 30-4-2005 and 31-8-2005, but on all occasions, he was superseded due to chequered service record. At the time of argument, learned counsel for the appellant submitted that the period from 1-1-2000 to 20-1-2000 was less than three months and no report was recorded for the same and the same was the position about the period from 18-8-2000 to 15-9-2000. His report for the period from 13-1-1999 to 14-12-1999 and also for the period from 21-1-2000 to 17-8-2000 was adverse. His reports from the period from 16-9-2000 to 31-12-2000, 1-1-2001 to 31-12-2001, 1-1-2002 to 2-4-2002, 1-1-2003 to 30-7-2003, 31-7-2003 to 31-12-2003 and 1-1-2004 to 31-12-2004 were described as `A' which amounts to `Good' and his A.C.R. for the period from 3-4-2002 to 12-9-2002 was described as `B' (Average). After his promotion as Inspector, the previous reports which did not prevent him from being promoted from the post of Sub-Inspector to that of Inspector of Police cannot serve as hurdle for his further promotion as D.S.P. At the time of arguments on this appeal, it was assured by the learned District Attorney that the appellant shall be re-considered for promotion as D.S.P. in the next meeting of the Departmental Promotion committee. (3) In view of what has been stated above, this appeal is accepted and it is directed that the appellant be reconsidered for promotion to the rank of D.S.P. in the next meeting of the Departmental Promotion Committee." Apparently, the department unsuccessfully invoked the jurisdiction of the apex Court and the appeal filed by the respondent was dismissed and the order of the Punjab Service Tribunal dated 8-3-2006 maintained. Subsequently, on the failure of the respondent to do the needful the petitioner filed a miscellaneous application before the Service Tribunal complaining of the inaction of the department and non-compliance of the order of the Tribunal dated 8-3-2006. The said application was disposed of on 9-5-2008 on the statement of the departmental representative that pursuant to the aforesaid order of the Tribunal case of the petitioner has been considered by the Departmental Promotion Committee and as per. his information only a notification was required to be issued. The petitioner has now filed the instant Constitutional petition seeking an appropriate order and direction to the respondents to implement the aforesaid order of the Tribunal by issuing a formal notification of his promotion.

4. Pursuant to a direction of this Court detailed report and para wise comments have been filed wherein the contentions of the petitioner borne out by the judicial record of this Court and the Tribunal is not disputed. However, it is contended that indeed the case of the petitioner was considered by the Departmental Promotion Committee in its meeting dated 15-1-2008 and recommended for promotion. However, it is contended that the Departmental Promotion Committee was not properly constituted as the representative of the Regulation Wing was not present, hence, the statement made before the Punjab Service Tribunal was based on a misapprehension. It is the case. of the respondents that the case of the petitioner was yet again placed before the Departmental Promotion Committee, however, in the meanwhile in exercise of Article 112 of the Police Order, 2002 Punjab DSP Service Rules, 2008 have been promulgated and' in terms whereof the petitioner was considered and found not fit to be promoted as his A.C.Rs. prior to his promotion as Inspector could not be ignored as personal evaluation reports for the last 15 years were now required to be considered.

5. In the aforesaid context it is contended by the learned Additional Advocate-General, Punjab that the direction issued by the Punjab Service Tribunal was that the case of the petitioner be considered for promotion in the Departmental Promotion Committee. The case has been considered and in accordance with the rules applicable he is not entitled to promotion as the rules applicable at the time when the officer is considered for promotion are relevant and applicable and not the rules that existed prior thereto. In support of his contention he placed reliance on Muhammad Ishaque and others v. Government of Punjab through Chief Secretary and others 2005 SCMR 980, Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others 2006 SCMR 1427, The Chairman, Central Board of Revenue and another v. Muhammad Malook and 11 others 1999 SCMR 1540 and Government' of N.-W.F.P., Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321. On the other hand, learned counsel for the petitioner has contended that the petitioner was entitled to be considered and promoted as far back as in 2002 and it was the result of the acts and omissions of the department that the matter was delayed forcing the petitioner to invoke the jurisdiction of the Punjab Service Tribunal more than once and also of this Court.: And in the circumstances the respondent department cannot be allowed to take advantage of its own illegal acts to the prejudice of the rights of the petitioner and further contended that even otherwise the said rules do not have retrospective effect. He placed reliance on Khan Asfand Yar Wali and others v. Federation of Pakistan through Cabinet Division PLD 2001 SC 607.

6. Heard. Record perused. It is settled law as has been correctly canvassed by the learned Additional Advocate-General, Punjab that no one has a vested right for promotion on the terms and conditions that exists at the time when he joins the service and such terms and conditions can always be varied to maintain efficiency in service and the terms and conditions applicable on the date when he is considered for promotion are relevant and required to be enforced. It is equally correct that even the recommendation for promotion may not be sufficient to create a vested right till it is accepted by the competent authority, if any. Such is the consistent view of the honourable Supreme Court of Pakistan as has been enunciated in the judgments relied upon by the learned Additional Advocate-General and noted above. However, the petitioner has not approached this Court for determination of his right to be considered for promotion or to raise a grievance that he has been unfairly or illegally dealt with in this behalf. Such is not the lis before this Court. In fact, the pith and substance of the grievance of the petitioner is that a judgment of the Punjab Service Tribunal is not being enforced. With regards to the determination of the rights of the petitioner to be considered for promotion the jurisdiction vests elsewhere and litigation in this behalf was undertaken by the petitioner before the Punjab Service Tribunal which culminated in the judgment dated 8-3-2006 in terms reproduced above. The Punjab Service Tribunal has been constituted under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and vested with the jurisdiction for determination of the grievance of the petitioner in this behalf and such determination was effected by way of the aforesaid judgment dated 8-3-2006. The department challenged the same before the honourable. Supreme Court of Pakistan by way of an appeal and the same admittedly was dismissed and the judgment of the Tribunal dated 8-3-2006 was maintained. Thus, the "rights" of the petitioner have been finally determined through a process of litigation by a Tribunal of competent jurisdiction. Viewed in the above perspective it appears to be the case of the respondents that notwithstanding the judgment of the Punjab Service Tribunal dated 8-3-2006 and the same being maintained in appeal by the honourable Supreme Court of Pakistan the subsequent changed law i.e. The Punjab DSP Service Rules, 2008 would be applicable. I am afraid the contentions of the learned Additional Advocate-General, Punjab cannot be accepted. It is equally settled law that where a final determination of rights of parties to a litigation remain unaffected by any change in law thereafter on the principle that a man is not to be vexed twice for the same cause of action unless it is so ordained in the subsequently legislation in clear and unmistakable term such is the law laid down by the Privy Council in John Lemm v. Thomas Alexander Mitchell (6) (1912 AC 400) and by the honourable Supreme Court of Pakistan in Commissioner of Sales Tax (West), Karachi v. Messrs Kruddson Ltd. PLD 1974 SC 180.

7. In view of the above it is clear and obvious that the respondents are bound to enforce and implement the judgment of the Punjab Service Tribunal dated 8-3-2006 as maintained and upheld by the honourable Supreme Court of Pakistan without reference to the subsequent rules. Consequently, this petition is allowed and it is directed that the case be placed before the Departmental Promotion Committee who shall decide the matter strictly in accordance and in the light of the observations/ direction of the Punjab Service Tribunal made in its judgment dated 8-3-2006. H.B.T./M-88/L Petition allowed.