2018 PLP (C (PLC(CS)N)

WAQAR AHMAD SETH, J.

Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has made a prayer that;- "On acceptance of this writ petition an appropriate writ may please be issued declaring the Notification the repeatedly deferring the case of petitioner for promotion to the post of PCS (EG) BS-21, allegedly for pending a criminal case and non availability of PERs for the years 2014 and 2015, is illegal, unlawful, without lawful authority and of no legal effect, the petitioner being fit and eligible for promotion to BPS-21, has every right to be promoted w.e.f. first deferment i.e. 30.11.2015, with all arrears and benefits, the acts and omissions of the respondents, whereby the petitioner is considered and deferred from promotion is mala fide and against the Rules governing promotion or any other remedy deem proper may also be allowed."

2. Brief but relevant facts of the case are that petitioner being Senior Bureaucrat/Civil Servant having more than 30 years of service at his credit was promoted to BPS-20 in the year 2009. That after his promotion, petitioner was remained posted as Administrative Secretary of various departments. Later on vide Notification dated 13.02.2010 was posted as Secretary, Local Government and Rural Development Department where he served till 05.04.2013. He was also posted as Secretary Relief Rehabilitation and Settlement Department. Thereafter vide Notification, dated 29.01.2015 lastly he was posted as Director General Prosecution, Khyber Pakhtunkhwa. As per seniority list petitioner placed at serial No.3 so circulated on 05.08.2016. That besides his seniority, the petitioner had undergone the Mandatory Management Course (MMC) and had also completed the required minimum length of service thus is eligible for promotion for the post of PCS (Executive Group) BPS-21. But due to pendency of criminal case under FIR dated 29.06.2015 was suspended from service vide Notification dated 31.07.2015. Petitioner has changed his suspension Notification dated 31.07.2015 through W.P. No. 4157-P/2015 which was honored and vide interim order dated 19.01.2016 relief was granted to him and it was ordered to re-instate the petitioner into service and consider the suspension as matured its life. Later on PSB meeting was held on 18.02.2016 but due to above stated reason his name was not considered. Similarly on 29.06.2016 again PSB meeting was held but this time respondent did not bothered to even mention the name of the petitioner. Thereafter the PSB meeting was again held twice i.e. on 27.07.2016 and 29.08.2016, and case of the petitioner for promotion was considered, but again deferred for the reason that he was under suspension in an Anti Corruption case and his PER for the years 2014 and 2015 are not available. Feeling distressed and aggrieved petitioner filed instant constitutional petition for the redressal of his grievance.

3. Respondents were put to notices, who have contested the petition by filing their written comments.

4. The moot question for determination before this Court is that whether deferment of petitioner in PSB meeting for promotion to BPS-21 is based on mala fide, against the Rules governing promotion or any otherwise.

5. Perusal of record reveals that in different PSB meetings case of the petitioner for promotion was deferred for the reasons well mentioned against each in below mentioned lines;- Item No. PSB meeting held on Reasons. 4. 18.02.2016 His date of birth is 10.06.1959. He joined Government service on 15.08.1984. He was promoted to BPS-20 on 19.07.2009. He has undergone mandatory course required for promotion. The Board in its meeting held on 30.11.2015 recommended to defer his promotion as he was under suspension in an Anti Corruption case and his PER for the year 2014 was also not available. He is still under suspension although his case for reinstatement in service has been submitted to the Competent Authority in compliance of Peshawar High Court, Peshawar order dated 19.01.2016. The Board recommended to defer his promotion. 0 29.06.2016 Note mentioned 3 27.07.2016 His date of birth is 10.06.1959. He joined Government service on 15.08.1984. He was promoted to BPS-20 on 19.07.2009. He has undergone mandatory course required for promotion. The Board in its meeting held on 30.11.2015 and 18.02.2016 recommended to defer his promotion as he was under suspension in an Anti-Corruption case and his PER for the year 2014 was also not available. Moreover his case for reinstatement in service had been submitted to the Competent Authority in compliance of Peshawar High Court, Peshawar order dated 19.01.2016. The Board was informed that his case is still pending in Anti Corruption Court. His PERs for the years 2014 (P) and 2015 (P) are also not available. The Board recommended to defer his promotion.

6. Whenever a case for promotion is put up before the Competent Authority/PSB, the Competent Authority, has either to promote an employee or have the option of 'supersession' or 'deferment'. In the instant case, petitioner's case for promotion was twice put up before the PSB meeting held on 18.2.2016 and 27.7.2016 and both the time the Board recommended to 'defer' his promotion due to suspension in Anti Corruption case and non availability of PERs for the years 2014 and 2015. According to the law of the land, deferment is neither a punishment nor a final order, as and when the reasons for deferment cease to exist the officer is promoted from the date, when his juniors were promoted and to be considered for promotion, it's the job of Service Tribunal under section 4 of the Tribunal Act, 1974. The Government of Khyber Pakhtunkhwa introduced promotion policy, 2009 and under the policy clause-v deferment of promotion reads as under:-- (a) Promotion of a civil servant will be deferred, in addition to reasons given in para-IV, if:- (i) His inter-se-seniority is disputed / sub judice. (ii) Disciplinary or departmental proceedings are pending against him. (iii) The PER dossier is incomplete or any other document/ information document/information required by the PSC/DPC for determining his suitability for promotion is not available for reasons beyond his control. (b) The civil servant whose promotion has been deferred will be considered for promotion as soon as the reasons for deferment cases to exist. The cases falling under any of the above three categories do not warrant proforma promotion but the civil servant will be considered for promotion after determining his correct seniority over the erstwhile juniors. (c) If an officer is otherwise eligible for promotion but has been inadvertently omitted from consideration in the original reference due to clerical error or plain negligence and is superseded, he should be considered for promotion as soon as the mistake, is noticed. (d) If and when officer, after his seniority has been correctly determined or after he has been exonerated of the charge or his PER dossier is complete, or his inadvertent omission for promotion comes to notice, is considered by the Provincial Selection Board / Departmental Promotion Committee and is declare fit for promotion to the next higher basic scales he shall be deemed to have been cleared for promotion along with the offices junior to him who were considered in the earlier meeting of the Provincial Selection Board/ Departmental Promotion Committee. Such an officer, on his promotion will be allowed seniority in accordance with proviso of subjection (4) of section 8 of the Khyber Pakhtunkhwa Civil Servants Act, 1973, whereby officers selected for promotion to a higher post in one batch on their promotion to the higher post are allowed to retain their inter-se-seniority in the lower post. In case, however, the date of continuous appointment of two or more officers in the lower post/grade is the same and there is no specific rule whereby their inter-se-seniority in the lower grade can be determined, the officer older in age shall be treated senior.

7. The facts on record clearly reflects that case of petitioner is that of deferment and not of supersession. Supersession can only be challenged before this forum, firstly the same is an adverse order and secondly due to bar contained in section 4(lb) of the Service Tribunal Act, 1974.

8. In view of the above this writ petition being not maintainable, dismissed as such. ZC/207/P Petition dismissed.