2008 PLP (C (PLC(CS))

HAFIZ TARIQ NASIM, J.

Facts relating to this writ petition are that the petitioner while serving in the Health Department in BS-17 became eligible for promotion to BS-18 in the year 1997 but she was promoted on officiating basis in BS-18 on 22-6-1998 instead of regular promotion, whereas one of the juniors namely Mst. Malika Shaheen was promoted in BS-18 on regular basis vide order dated 18-2-1997. Petitioner filed Service Appeal No.2592 of 1997 before the Punjab Service Tribunal against the order dated 18-2-1997, whereby the junior was promoted and she was ignored, the said appeal was accepted through judgment dated 30-9-1998 directing the Departmental Authorities to re-consider the matter and re-decide the question of promotion afresh keeping in view the seniority of the petitioner. This judgment was even confirmed by the Honourable Supreme Court of Pakistan. According to the learned counsel for the petitioner that despite clear finding and direction of the learned Punjab Service Tribunal, the petitioner is being victimized since 1998 by way of non-promotion and that too on extraneous consideration, whereas the petitioner is still working against BS-18 without any break. Further submits that the case of the petitioner was placed before the D.P.C. but it was deferred on the ground of pendency of certain enquiries. The learned counsel submits that the pendency of enquiry and even the minor penalty cannot come in the way of promotion, whereas the respondent was adamant not to promote the petitioner at any costs due to ulterior motive.

2. Learned A.A.-G. submits that the promotion cannot be asked as a matter of right and even the petitioner is not superseded so there is no question of any grievance, which could entitle her for invocation the jurisdiction of this Court.

3. The Additional Secretary Health, who is present in court along with the record submits that the reasons of non-promotion of the petitioner is pendency of enquiry against the petitioner as well as the minor penalty of censure, however, after the finding of the enquiry her case shall be submitted before the D.P.C. for reconsideration.

4. Argument heard. Record perused.

5. The record reflects that the petitioner is made a subject of repeated enquiries, became eligible for regular promotion in the year 1997 but instead of promoting her on regular basis, she was promoted on officiating basis, whereas her junior was promoted on regular basis, which matter was also adjudicated upon by the learned Punjab Service Tribunal long, long ago.

6. It is also confirmed from the record that one minor penalty of censure is available in her record but the minor penalty as well as the pendency of enquiry cannot be treated a hurdle for the regular promotion of the petitioner as the Honourable Supreme Court of Pakistan once for all resolved the matter in a case reported as Captain Sarfaraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637, wherein it is held that on all the minor penalties civil servant cannot be ignored and cannot be refused to grant promotion.

7. It is to be noted that the words used by the Honourable Supreme Court of Pakistan in respect of minor penalty is plural i.e. minor penalties. In the present case only one minor penalty of censure is available in the record. In another judgment reported as Mina Ali Muhammad vs. Secretary. Establishment Divisions, Government of Pakistan and 3 others 2003 PLC (C.S.) 1425, this court followed the law laid down by the Honourable Supreme Court of Pakistan referred above holding: "Promotion could not have been withheld on the ground that minor penalty was imposed upon him".

8. So far the pendency of enquiry against the petitioner is concerned, record reveals that the petitioner is being made a subject of repeated enquiry, which otherwise does not seem fair, particularly, when the proceedings of the enquiry are going on and on for a number of years.

9. During the pendency of enquiry against the petitioner, she cannot be deprived of her lawful right for his consideration for promotion as held by the Honourable Supreme Court of Pakistan in cases reported as Deputy Inspector-General of Police, Gujranwala and others v. Anwar Saeed, Inspector Police and others 1998 SCMR 552 and Maj. Ziaul Hassan, Home Secretary and others v. Mrs. Naseem Chaudhry 2000 SCMR 645.

10. After going through all aspects of the case, it is held that withholding of the petitioner's promotion on regular basis from the date when she became eligible is practically an outcome of colorable exercise of power and that action of the Departmental Authorities cannot sustain in the eye of law on two grounds:

(i) "Pendency of enquiry against a civil servant cannot be treated a bar for further promotion. (ii) Minor penalty of censure and even the minor penalties cannot become a hurdle in the promotion of any civil servant." Accordingly the writ petition is allowed and respondent is directed to place the petitioner's promotion case for her regular promotion before the Departmental Promotion Committee within one month positively and the said Committee is directed to consider the petitioner for promotion fairly, justly and without being influenced of the pendency of any enquiry and the minor penalty. The promotion case be considered from the date of petitioner's eligibility. The Additional Secretary, who is present in Court, shall ensure the compliance of the court's order and complete the process within one month under intimation to the Deputy Registrar (J.) of this Court. H.B.T./S-16/L Petition allowed.