2026 PLP (C (PLC(CS))

SAHIBZADA ASADULLAH, J.

Zafar Ali Shah, petitioner herein, aggrieved from the acts / inactions of the respondent-bank, has approached this Court by invoking the constitutional jurisdiction, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the prayer to direct the respondent-bank to issue his promotion order dated 01.01.20211, (Vice President), with all back benefits, including gratuity and allowance / pensionary benefits, which was withheld by the respondents on the ground of disciplinary proceedings against him.

2. Short but relevant facts leading to filing the instant writ petition are that petitioner had been serving as Manager, National Bank of Pakistan, Cantt. Branch, Peshawar, where in the year 2012, one Arman Shah, OG-III / cashier, Incharge PTCL, Booth, Peshawar, had committed embezzlement amount to Rs.37,449/- which led the respondent Bank to initiate an inquiry against the wrongdoer, as the petitioner was the Manager of the Bank, so he was also held responsible and as such he was served with a show-cause notice to explain his position. After the needful was done the petitioner received an office order issued on 11.04.2013 vide which the respondent No. 01 imposed the penalty and as such the petitioner stood demoted from the post of Assistant Vice President to the post of Officer Grade-I (OG-1).

3. Aggrieved whereof, the petitioner filed departmental appeal, which was dismissed by the authority. Thereafter, the petitioner approached this court through Writ Petition bearing No. 1547-P of 2017, with the prayers, which read as read as under: - i. (a). The entire proceedings as carried out at the back of petitioner providing no opportunity to defend his case as illegal, without lawful authority, defective, arbitrary and against the principle of natural justice. (b). The impugned order dated 15.04.2013 based on defective proceedings and inquiry thereby petitioner was demoted to lower position from AVP to OG-I and the order dated 10.03.2017 thereby his departmental appeal was rejected as illegal, unlawful, without lawful authority, arbitrary, mala fide of no legal effect, having no legal sanctity and inoperative against the rights of petitioner and also against the principle of natural justice and be set aside. ii. Direct the respondents Nos.1 to 4 to restore his position / grade as Assistant Vice President with all back benefits from due date and further directed to issue the notification of his promotion to the position of Vice President which was withheld by the respondent-bank on the ground of disciplinary proceedings."

4. The above referred to writ petition came up before this Court on 03.02.2022, and this Court was pleased to allow the petition as prayed for, vide the judgment dated 03.02.2022. Feeling aggrieved the respondent Bank agitated the matter before the apex Court through Civil Appeal No. 3160-P of 2022. When the matter was taken up for hearing, the learned counsel representing the Bank submitted before the Court that the Bank is ready to take into consideration prayer No. (ii) of the petition, provided the petitioner would not agitate rest of the prayers. It is pertinent to mention that prayer No. (ii) of the petition was with regard to the promotion of the petitioner to the position of the Vice President, but subject to the condition that his case is to be considered in accordance with the rules and law on the subject. The petitioner agreed to the same and as such the apex Court was pleased to partially allow the petition vide judgment dated 30.01.2023, holding that "the case of the respondent for promotion to the post of Vice President will be considered purely on merits and in accordance with his entitlement independent of the order of the High Court". With these observations, the petition was disposed of.

5. Though, this Court was pleased to pass an order in W.P No. 1547-P/2017 on 03.02.2022, but the petitioner felt dissatisfied from the attitude of the respondent Bank for not implementing the same, so the petitioner approached this Court by preferring a contempt of Court petition bearing No. 146-P/2023, where a reply was sought from the respondents. The reply explained that though the case of the petitioner was considered for promotion but the petitioner could not qualify for the same. The Court felt it necessary for the respondent Bank to consider the claim of the petitioner strictly in light of the judgment passed, so the Respondent-Bank was again directed to do the needful within a period of one month. The petitioner was given the liberty, that in case his grievance was not redressed, then he could avail his legal remedies. We feel it necessary to reproduce the observations so rendered which reads as follows: - "we agree with the reply of the learned counsel for the respondent-bank that case of the petitioner was scrutinized by the Board for the purpose of his promotion to the position of Vice President and finding him ineligible."

6. In compliance of the judgment of this Court, the respondent-bank restored the petitioner to the position of Assistant Vice President, but with effect from 03.02.2022 i.e. the date, on which his writ petition was allowed by this Court. As this Court allowed the writ petition, so the petitioner presumed that the Respondent-Bank was directed to restore the petitioner to the position of Assistant Vice President from the requested date i.e., 15.04.2013, the date on which the petitioner was demoted.

7. Feeling disgruntled, the petitioner again approached this Court through contempt petition No. 385-P of 2023, where the reply of the respondent was sought. The counsel representing the respondent-Bank put appearance before the Court and submitted that petitioner would be restored to his previous position from the date of the judgment provided he furnishes acknowledgment/certificate of his restoration from that date, and accordingly the contempt petition was disposed of with directions to the respondent-Bank to do the needful within a period of one (01) month. After restoration to the position of Assistant Vice President, the petitioner was considered for promotion to the position of Vice President, but the respondent-bank did not find him eligible for promotion, hence, the petitioner seeks the indulgence of this Court for issuance of the desired writ.

8. We have attended to the submissions of learned counsel for the parties and perused the available record with their valuable assistance.

9. Before dilating upon other aspects of the case, we deem it appropriate to reproduce the prayers of instant writ petition as well as that of the earlier writ petition. The same reads as follows: - a). Direct the respondents to release the promotion order dated 01.01.2011 of the petitioner to the grad of Vice President which was approved / issued but could not be awarded due to an event without any further delay. b). Grant the petitioner promotion to the grad of Vide President w.e.f. 01.01.2011 with all back benefits including gratuity and allowance / pensionary benefits. The relevant prayer i.e. prayer No. (ii) of the earlier writ petition reads as under: - (ii). Direct the respondents Nos.1 to 4 to restore his position / grade as Assistant Vice President with all back benefits from due date and further directed to issue the notification of his promotion to the position of Vice President which was withheld by the respondent bank on the ground of disciplinary proceedings."

10. No ambiguity is left in assessing that in both the petitions, the petitioner sought the indulgence of this Court for directing the respondent-Bank to issue the notification regarding promotion of the petitioner to the post of Vice President, from the date when the same was withheld because of the inquiry and he also requested this Court his promotion from 01.01.2011 with all back benefits. The circumstances do tell that the petitioner has once again approached this Court for the relief he wanted from this Court in his earlier writ petition, so in our understanding, the issue stood decided earlier and the subsequent approach of the petitioner is strictly barred under the doctrine of res judicata. Though this Court in the earlier writ petition allowed the claim of the petitioner by issuing directions qua issuance of the notification for restoration of the petitioner, but the same was questioned before the apex Court and it was in that proceedings that an offer was made by the learned counsel representing the Bank which was accepted by the learned counsel representing the petitioner, and as such the matter was disposed of As the learned counsel representing the Bank submitted before the apex Court that in case the petitioner would not ask for several reliefs as noted down in the petition and if the petitioner would restrict himself to prayer No. II, so in that eventuality, the Bank would have no objection if the same is allowed to that extent, then the Bank would look into the matter strictly in accordance with law and rules on the subject. It is evident from the order of the apex Court that the relief was not given on the strength of the order passed by this Court, rather it was an understanding between the parties before the apex Court, where the petitioner surrendered himself to the offer extended. Now the question for determination before this Court is, that when the petitioner accepted the offer extended by the Bank, before the apex Court, whether in that eventuality the petitioner did not surrender himself to the law on the subject and to the rules prepared for the purpose, to be more, specific it was the petitioner who waived off his promotion from the date as prayed for in the instant petition, rather his fate was to be determined afresh when the Bank would look into his credentials and his qualifications for the desired post, so in essence the order passed in favor of the petitioner, which was questioned by the respondent-Bank, before the apex Court had lost its utility and the matter would run and revolve around the order passed on consent of the parties, by the apex Court.

11. The eagerness of the petitioner is that he was discriminated, as similar treatment was not given to him, rather the assessment of the Bank, in case of the petitioner, is against the policy in vogue i.e., 2011 and that under all circumstances, the respondent-Bank was supposed to award promotion to him to the grade of Vice President on the performance of last three (03) years evaluation i.e., 2008, 2009 and 2010. He further highlighted that to evaluate his performance on the Annual Performance Appraisal Score for the years 2014, 2015 and 2016 is unjust, against the law and policy. It was lastly argued that though the petitioner stood retired from service, yet he can claim the what he was deprived from. In order to appreciate the contentions of the learned counsel for the petitioner, we deem it essential to look back to the period where the matter was decided by the apex Court and in our understanding, it was on 30.01.2023 that the petition was disposed of as per commitment of the respondent and as per acceptance of the petitioner. The petitioner was considered for promotion to the position of Vice President and his case was evaluated in terms of Board approved policy that was in vogue by the time i.e., the promotion policy dated 30.11.2017 (effective on 01.12.2017), but unfortunately he was found ineligible due to his inability to meet the minimum eligibility criteria stipulated in the policy. While scanning through the policy, we came across the threshold which the desired candidate would pass through. The criterion was Based on Annual Performance Appraisal score for the last three (03) years, must not be less than 18 score, with performance not below "Good" during the last year. Unfortunately, when the Annual Performance Appraisal score for the last three years i.e., 2014, 2015 and 2016 was found 15 i.e., below the minimum threshold, and as such was found ineligible. Record tells that once again the petitioner was considered for promotion to the post of Vice President on last three (03) years Annual Performance Appraisal (APAs), in terms of promotion policy invoke i.e., promotion policy dated 03.08.2021 effective from 01.03.2021, but the petitioner failed to qualify for the same and as such his plea for promotion was declined. Neither the petitioner approached Promotion. Grievance Review Committee, within ninety (90) days, as per observations of the apex Court, but it was after lapse of many months that the petitioner approached this Court.

12. The learned counsel for the petitioner wanted to convince that the petitioner should have been treated under the policy in vogue at the time of his alleged demotion, but we are not convinced with what was submitted, as in-fact it was the petitioner who accepted the offer extended to him by the learned counsel representing the respondent in the Supreme Court of Pakistan and as such the petition was disposed of with a condition that the case of the petitioner should be looked into in accordance with law and on merits. As the judgment of the apex Court was accepted by the petitioner, so in our understanding the case of the petitioner should be dealt with in light of the policy which was in vogue by the time when the order was passed. The petitioner was dealt with in accordance with law and the respondent-Bank did consider the claim of the petitioner, but it was the petitioner who failed to place himself at the desired place and as he could not touch the minimum threshold, which was the requirement for promotion, so the petitioner further suffered, as the State Bank of Pakistan (SBP) stressed on fair competition, so the respondent-Bank too opted to enhance the performance of its employees, so for that matter, the promotion policy of 2021 has put the condition of Annual Performance Appraisals based on three years i.e., 2017, 2018 and 2019. Wisdom is derived from the verdict of the apex Court reported as 2022 SCMR 1618, where the apex court held as under: - "In the philosophy or jurisprudence of service laws, no one has a vested right to a particular promotion or particular seniority but it is always governed and regulated in accordance with the applicable rules and regulations with a venue of consideration for progression including the fixation of seniority in line with the criteria provided under the applicable rules and such consideration can only be invited if at requisite conditions or preconditions are fulfilled by such claimant enabling him to join the queue or stand in line."

13. The petitioner has alleged discrimination and mala fide with the averment that since he has started litigation, so the respondent-bank maltreated him. Though, this Court sitting constitutional jurisdiction, cannot dilate upon disputed questions of facts or for that matter controversial issues, however, so far as the instant matter is concerned, the petitioner did not object on his Annual Performance Appraisals (APAs) before the relevant forum to be based on discrimination. Though, as a matter of record, it was agitated before this Court, but this Court in absence of any concrete material, and as referred to above, under Article 199 cannot go into disputed questions of facts. So far as the stance that respondent bank should have evaluated the petitioner's performance on the three years i.e. 2008, 2009 and 2010 instead of 2014, 2015 and 2016 etc. is concerned, suffice it to say that under the theme and scheme of service law and more particularly, in case of promotion; the, last three years evaluation reports are being scrutinized in this part of the world, and one cannot select his evaluation of his choice and that too; when having deficiency or for that matter unqualified Annual reports.

14. Though, the petitioner after demotion filed appeal, but the record suggests that it was pending before the authority, and it was on 10.03.2017, when the same was dismissed, and during that period, the petitioner did not move and remained mum. It was essential for the petitioner to have agitated and make efforts for early disposal of his departmental appeal. The record further suggests that as by now the petitioner stood retired from service on attaining the age of superannuation, so the petitioner despite efforts could not bring on record any law which could be taken into consideration, more particularly, in the circumstances when the petitioner already stood retired. Reliance can be placed on the case of National Bank of Pakistan through President v. Sajjad Ali Kakakhel and another, reported as 2024 SCMR

12. Relevant portion whereof reads as under. - "Having heard the learned counsel for the parties and going through the record, it is clear and obvious that the respondent had been superseded in 2010 which supersession was not challenged within a reasonable time. The constitutional petition filed by the respondent before the High Court suffered from lathes. Further, the right that the promotion for which there is no provision in the relevant service rule. This is coupled with fact that the respondent had already retired from service and received all his benefits due to him under the law. As such, we find that interference by the High Court in the matter at the stage that it interfered was not supported either by the relevant law or by any of the rules which governs the terms and conditions of employees of the petitioner bank. We, therefore, find the impugned judgment to be unsustainable. Consequently, we convert this petition into appeal."

15. Last but not the least, the learned counsel for the respondent bank also objected to the maintainability of the writ petition on the ground that since the National Bank of Pakistan Staff Services Rules, 2021 are non-statutory in nature, and that in such eventuality, the principle of Master and Servant will apply. The learned counsel for the petitioner vehemently opposed the objection and submitted before the Court that prior to the instant petition, the petitioner's earlier petition was entertained and allowed by this Court, which was upheld by the apex Court, and on that basis, the petitioner was restored to the position of Assistant Vice President. Though, serious objection was raised by the learned counsel representing respondent-bank regarding the maintainability of the instant writ petition, but this court would restrain itself to dilate upon that particular aspect of the case, as in-fact, the instant writ petition is the continuation of the previous litigation between the parties, and the same went up to the apex Court where a consent order was passed. Whether this court has jurisdiction in the matter or otherwise is to be dilated upon in some other case, but at present as it was this court which earlier took cognizance of the matter, and it was the apex court which also dealt with the matter when a portion of the prayer of the petitioner was accepted and when on consent of the parties the petitioner was asked to appear before the board, and the board was directed to consider the claim of the petitioner strictly in accordance with law. At this juncture, we do not seem it appropriate to determine the maintainability or otherwise, as that is not the subject of dispute before this court, as the instant writ petition is the continuation of the previous proceedings.

16. The attending circumstances of the present case lead this Court to an irresistible conclusion that the petitioner failed to make out a case for the indulgence of this Court, the instant petition is lacking substance, the same is dismissed as such. UN-147/P Petition dismissed.