2019 PLP (C (PLC(CS)N)

ADNAN-UL-KARIM MEMON, J.

Through the instant Petition, the Petitioner seeks direction to the Respondents to promote him in BPS-18 with effect from 31.12.2003 along with his batch-mates and he be promoted to BPS-19 with effect from 29.12.2008 with all back benefits and privileges as admissible under the rules for pension and retirement benefits. He seeks further direction to the Respondent to re-fix pay and pension as per fresh promotion to BPS-18 and BPS-19 as admissible under the rules.

2. Brief facts of the case are that Petitioner was initially appointed in provincial Secretariat service (PSS) in Government of Sindh as superintendent BS-16, subsequently he was promoted to the post of section officer BS-17 (OPS). Petitioner further averred that his services were requisitioned by the National Accountability Bureau on deputation, vide Notification dated 04.07.2000. It is added by the petitioner that he was permanently absorbed, as Assistant Director BS-17 by the National Accountability Bureau vide Notification dated 30.07.2003. Petitioner averred that he was deferred for promotion in the year 2003 whereas his batch met were promoted to their next grade, on the premise that petitioner has only 10 months length of service in NAB. As per petitioner he filed Appeal dated 26.02.2004 before the Chairman National Accountability Bureau/Respondent No.1, requesting that in case the petitioner does not have required length of qualifying service in BS-17 for promotion to BS-18, then 1/2 of the BS-16 service may be computed and even then does not qualify, 1/ 4th of BS-15 and below service may be computed as provided under the relevant promotion rules. Petitioner added that finally he was promoted in BPS-18 w.e.f. 2008 vide Notification dated 04.06.2008. It is asserted by him that the colleagues of the petitioner were promoted to BPS-19 w.e.f. 31.12.2008 whereas he was deprived of promotion on the same analogy. Petitioner added that he attained the age of superannuation i.e 60 years and retired from service of the Respondent w.e.f. 01.02.2010. Petitioner added that he is entitled to be promoted w.e.f. 31.12.2003 as Deputy Director BS-18, in view of promotion of his batch met, therefore his past service in his parent department is required to be counted towards promotion, which is not done in the case of petitioner, thereby discrimination was meted out with him. Petitioner claims that he filed representation dated 06.06.2011 followed by reminders dated 09.03.2012 but the same have not been replied. Petitioner, being aggrieved by and dissatisfied with the impugned inaction on the part of Respondents, has approached this court on 12.02.2013.

3. Upon notice, Respondents filed Para-wise comments and denied the allegations.

4. Mr. Irfan Mir Halepota, learned counsel for petitioner has contended that the Respondents are bound by law to treat the petitioner in accordance with law; that the Respondents have opted to treat the petitioner in discriminatory manner which is against the established provision of law and Constitution; that due to illegal, unlawful, discriminatory and bias attitude of Respondents, petitioner is adversely effected and has been deprived from his legal / lawful right of promotion; that petitioner is entitled to be promoted with effect from 31.12.2003 in BPS-18 simultaneously in BPS-19 w.e.f 29.12.2008, in view of promotion of his batch met, the past service of the petitioner is required to be counted towards promotion which is not done in the matter of petitioner. He lastly prayed for allowing the petition.

5. Mr. Akram Jawed, learned Assistant Deputy Prosecutor General NAB, representing the Respondents, has argued that the petitioner has retired from service w,e.f. 01.10.2010, therefore, the petitioner cannot be granted profarma promotion; that the instant petition is not maintainable in law which suffers from latches that the petitioner was inducted in service on 30.07.2003 through appointment by way of transfer as he was previously holding the post of Superintendent BS-16 in Sindh Government, before joining the NAB and thereafter he was promoted by his previous department to the post of section officer in BPS-17 on regular basis w.e.f. 01.03.2003, during his deputation period in NAB; that the petitioner did not possess the required length of service that is 5 years' service in BPS-17 for further promotion as per Rule 3.25 of NAB Terms and Conditions 2002; that conditions for promotion in NAB's Method and Qualification Rules, 2002; that two seniors of the petitioner were also not considered for promotion due to the same reason; that representation of the petitioner was considered and same was regretted vide letter dated 27.3.2004; that the officers inducted in the year 2003 were promoted on 15.10.2008 and 29.12.2008 and 3 officers were deferred for promotion, due to lack of requisite length of service; that the previous service rendered in other departments cannot be counted for promotion against the post in NAB as NAB has its own service rules; that no discrimination to the petitioner has been done by the Respondents; that the petitioner does not fulfill the criteria for retrospective promotion to BS-18 and BS-19 after retirement of the Petitioner on 1.2.2010. He lastly prayed for dismissal of the instant Petition.

6. We have heard learned counsel for the parties and have also perused the material available on record.

7. Admittedly Petitioner was inducted in regular service of Respondents on 30.6.2003 in BS-17. The required length of service for promotion to BS-18 is 5 years in basic pay scale

17. As per record petitioner was promoted to BS-18 on 4.6.2008 as per Rule 3.25 of terms and conditions of service Rules 2002, which provides as under:- 3.25 Fulfillment of Minimum Service 1. promotion to posts in basic pay scale 18 and above shall be subject to fulfillment of minimum length of service by the employee as specified below: For promotion to posts in basic pay scale 18 5 years in basic pay scale 17 For promotion to posts in basic pay scale 19 12 years' service in BPS 17 and above For promotion to posts in basic pay scale 20 17 years' service in BPS 17 and above For promotion to posts in basic pay scale 21 22 years' service in BPS 17 and above Provided that:- a) When initial appointment of a person not being an employee of the NAB takes place in a post in basic pay scale 18, 19 or 20 the length of service specified above shall be reduced for the purpose of promotion to higher posts as specified below:- Basic pay scale 18 5 years Basic pay scale 19 5 years Basic pay scale 20 5 years b) Where initial appointment of a person already in the employment of the NAB takes place in a post in basic pay scale 18,19 or 20, the length of service specified for promotion shall be reduced for the purpose of promotion to higher posts as in (a) above. c) When first appointment of a person other than a person in (b) above was made in the NAB in a post in basic pay scale 16 or below; one half service in basic pay scale 16 and one fourth in basic pay scale 15 and below may be counted as service in basic pay scale 17 for computing length of service for promotion only.

2. Periods of extra ordinary leave or any other period of service which is not reckoned as service qualifying for pension shall not be counted towards prescribed length of service for promotion. 3.26. Conditions prescribed for promotion to Selection posts For promotion to selection posts in BPS-19 and above employee must fulfill the following conditions as prescribed from time to time by the Government: (i) Quality Service. (ii) Eligibility threshold (minimum score/marks in CRs) (iii) Qualifications as prescribed by Methods of Appointment and Qualification (MAQ) (iv) Relevance of Experience. (v) Quality or output of work and integrity. (vi) Training etc.

8. In the light of above legal position petitioner was declined the relief by the Respondents, finally the petitioner retired from the service of Respondents with effect from 1.2.2010, vide Notification dated 23.02.2010.

9. The claim of the petitioner to promote him in BPS-18 with effect from 31.12.2003 along with his batch mates and in BPS-19 with effect from 29.12.2008 is refuted by the Respondents on the premise that that for promotion to the higher grade in BPS-18 five years' service in grade 17 is qualifying service for promotion, whereas the petitioner has no qualifying service for promotion as he was appointed on 30.07.2003 and his promotion was considered as Deputy Director BPS-18 w.e.f. 23.05.2008, which prima-facie correct legal position.

10. In view of the above position, we are of the view that the petitioner lacks qualifying service for promotion for grade

19. The requirement of law is twelve years' service in grade 17 and above. As per record, petitioner does not meet the said criteria to claim profarma promotion after retirement. Even on merit, the petitioner has no case for further consideration.

11. It is well established principle in service jurisprudence that that promotion from the back date to the retire Civil Servant/Public Servant cannot be granted until and unless he meets the criteria prescribed under the law.

12. The petitioner has not satisfied this court in respect of laches as he filed petition on 12.02.2013 though he retired from service in the year, 2010 which suffers from latches; therefore, he is not entitled for the relief claimed in the instant petition.

13. Petitioner also failed to satisfy this court regarding maintainability of this petition before this court after retirement in the light of case of Government of Pakistan and others v. Hameed Akhter Niazi and others (PLD 2003 SC 110).

14. In the light of above facts and circumstances of the case, the instant petition is meritless, which is accordingly dismissed along with pending applications.

15. These are the reasons of our short order announced in open Court on 19.10.2017, whereby we dismissed the instant petition. ZC/M-21/Sindh Petition dismissed.