2003 PLP (C (PLC(CS))

Date of hearing: 13th June, 2003. The grievance of the petitioner is against his deferment for promotion from BS-16 to BS-17 as S.S.T. According to the report and parawise comments submitted by respondent No.1, not only a criminal case was pending against the petitioner but also that there .vas an adverse remarks about his integrity in the A.C.R. for the period from 1-1-2000 to 31-7-2000. Further, an inquiry was conducted against the petitioner and the Inquiry Officer has recommended imposition of major penalty on the petitioner.

2. The learned counsel for the petitioner submits that as far as the adverse A.C.R. for the year 2000 is concerned it was not conveyed to turn and, therefore, could not have been taken into consideration to the disadvantage of the petitioner. As far as pendency of the criminal case is concerned he submits that unless the petitioner was found guilty by the competent Court, he will be presumed to be innocent. According to him withholding of promotion is a penalty and it cannot be imposed in anticipation of the decision of the criminal Court. Reliance was placed on N.A. Qureshi v. Government of the Punjab and 2 others (PLD 1982 Lah. 242).

3. As far as the third objection of the departmental authority is concerned, he maintains that the inquiry was initiated under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 and as a result of promulgation of the Punjab Removal from Service (Special Powers) Ordinance, 2000, no further proceedings in the matter could be taken and the said inquiry being infructuous, the findings recorded therein are of no relevance. Reliance is being placed on Muhammad Aslam Sheikh v. Federation of Pakistan through Secretary Establishment Division Cabinet Secretariat Islamabad and another (1999 PLC (C.S.) 761).

4. On the other hand, Mr. Muhammad Hanif Khatana, learned Addl. Advocate-General, submits that the petitioner had a right to be considered for promotion. He was duly considered but deferred for valid reasons.

5. The submissions made by the learned counsel for the parties have been considered.

6. There is a merit in the first contention of the learned counsel that uncommunicated adverse remarks could not be considered against the E petitioner for deferring his case for promotion. This is supported by the observations of the Hon'ble Supreme, Court in the case of Muhammad Farooq Chohan v. Province of Punjab (PLD 1987 SC 271).

7. As far as promotion during pendency of a criminal case is concerned, there is no specific rule. However, according to the letter No.S.O. XII (S&GAD) 5-16/62 dated 7-g-1962 (printed at page 121 of the O&M Establishment Manual Volume-II, 1974 Edition) it has been left to the competent authority to take cognizance of the said criminal case, ask for a progress report, postpone consideration of the case (for promotion) or ignores it. Vide Government of the Punjab letter No.SO(IV) (S&GAD) 1-75-67 (policy) dated 18-1-1968 (pages 122 and 123 of the said Manual), the instructions contained in the letter dated 7-9-1962 aforesaid were applied to the cases of departmental proceedings as well. The letter dated 7-9-1962 and 18-1-1968 were further explained in letter. SO(IV) (S&GAD)-1-75/67 (Policy) dated 17-1-1969 (pages 123 and 124 of the said Manual), according to which, if the Authority was of the view that allegations, if established against a civil servant would call for a minor penalty then such an inquire may be ignored for the purpose of with holding of promotion of a person who is otherwise suitable for it. Therefore if the Selection Authority takes a decision not to promote a civil servant involved in a criminal case or a departmental inquiry, it cannot be said that it has acted without lawful authority. It may also be observed that the aforesaid instructions, which are general in nature issued by the competent authority have the force of rules. And, according to section 23(2) of the Punjab Civil Servants Act, 1974 even the instructions issued by the competent authority, which are not inconsistent with any provision of the said Act shall be deemed to be rules made under the said Act.

8. The judgment in the case of N.A. Qureshi, supra, relied upon by the learned counsel for the petitioner has been considered. In the said case, the Governor of the Punjab, vide order dated 25-11-1980, during the pendency of a criminal case against the petitioner in the said case, had allowed certain benefits to the petitioner including his promotion to the post of Deputy Director, Food which was subject to the formal approval of the Service and General Administration. Department. It was observed that, if promotion of the petitioner was he deferred on account of the criminal case pending against him, there were many occasions to do so before the order dated 25-11-1980. It was further observed that the formal approval of the S&GAD did not authorize the subordinate functionaries to undo the order passed by the Chief Executive of the Province. The said case had its-own peculiar features.

9. About the contention of the learned counsel, for the petitioner that the inquiry proceedings under the Efficiency and Discipline, Rules have been rendered infructuous, suffice it to say, that section 13 of the Punjab Removal from Service (Special Powers) Ordinance, 2000, saves the proceedings p pending under the Punjab Civil Servants Act, 1974 and the rules made thereunder. The aforesaid provisions prima facie answers the contention of the learned counsel for the petitioner. However, a final decision of the question is left for determination of the competent authority. Accordingly; I find no merit in this petition which is, dismissed. H.B.T./A-876/L Petition dismissed.