2025 PLP (C (PLC(CS))

Dr. KHURSHID IQBAL, J.

The petitioner has been serving as a Forester in the Forest Department. He claims to be the senior most Forester. In its meeting held on 16/12/2022, the Departmental Promotion Committee (DPC), after considering his case for promotion, deferred it for the reason that disciplinary proceedings were pending against him. The Chief Conservator of Forests, Central Southern Forest Region-I (the respondent # 2) circulated the Minutes of the meeting of the DPC on 04/01/2023, which the petitioner has challenged (impugned Minutes) in the instant petition under Article 199 of the Constitution. The petitioner has prayed before us that the Minutes may be declared as illegal, unjustified and against the law to his extent.

2. The respondents submitted their comments. We have heard Mr. Waqar Alam, learned counsel for the petitioner and Mr. Amir Farid Sadozai, learned Asst. Advocate General (AAG), for the respondents, and perused the record.

3. At the very outset, the learned AAG raised the question of jurisdiction. Controverting the objection, learned counsel, for the petitioner invited our attention to section 4(1)(b) of the Service Tribunal Act, 1974. The provision reads as under: (b) No appeal shall lie to a Tribunal against an order or decision of the departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to higher post or grade;

4. Keeping in view the above express statutory provision, we overrule the objection and hold that this court has got jurisdiction in the instant matter.

5. The main argument of the learned counsel for the petitioner is that pendency of disciplinary proceedings couldn't be a legal hindrance in the way of promotion. He relied on certain rulings which we would refer to discuss later in this opinion. The learned AAG, on the other hand, produced a copy of the 2009 Provincial Civil Servants Promotion Policy, which, inter alia, provides deferment of promotion if disciplinary or departmental proceedings are pending against a civil servant. He added argued that the disciplinary proceedings have substantially progressed and on an inquiry, the petitioner has been found guilty of misconduct and major penalty has been proposed against him. He further added that final show-cause notice has been served on the petitioner.

6. While considering the impugned Minutes, we shall first refer to the case law the learned counsel relied upon. The first case he referred is Famanullah v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and 4 others, 2022 PLC (C.S.) 635 [Peshawar High Court (D.I. Khan Bench)]. In this case, the moot point was fitness criteria. The Court noted that the point for determination was that whether certain fitness criteria the respondent set out was just and in consonance with the policy of the Provincial Government in vogue. Next, he referred to Nzeer-ud-Din v. Government of Pakistan through Secretary, Passport and Immigration Department and others, 2017 PLC (C.S.) 578 [Islamabad High Court]; and Yousaf Hayat v. Additional Chief Secretary, FATA Secretariat, Peshawar and 5 others, 2018 PLC (C.S.) Note 66 [Peshawar High Court]. In the former case, a criminal case was pending against the petitioner, an employee of the respondent-Department. In this case, however, the learned Court ruled that the jurisdiction of the High Court is not barred with respect to fitness of a civil servant for promotion. In the latter case, the respondent-Department had kept the petitioner (its employee) suspended for longer period which was used a hurdle in his promotion. Another case he referred was Naeem Abbas v. Government of Punjab through Secretary and 4 others, 2017 PLC (C.S.) 404 [Lahore High Court (Multan Bench)]. In this case, the Court ruled that mere pendency of disciplinary proceedings is not sufficient to be considered as a clog on promotion of an employee. The facts in which the learned Court expressed this opinion were that the petitioner was promoted but later on his promotion was rescinded for the reason that certain disciplinary proceedings were continuing against him which he managed to conceal. We are of the view that these cases are distinguishable from the case in hand. The distinction of the instant lies in the fact that disciplinary proceedings were not only pending at the time of meeting of the DPC, but continued and reached to substantially unfavourable result, a major penalty having been proposed against, and a final show-cause notice issued, to him. We are of the view that at this critical moment, interference in our constitutional jurisdiction is not warranted. It is here that we would refer to the last case the learned counsel for the petitioner relied upon. The case is Miss Zebaida Khatoon v. Mrs. Tehmina Sajid Sheik and others, 2011 SCMR

265. In this case, the Supreme Court granted leave in the following terms: After hearing the petitioner in person as well as the learned counsel for the respondent, we grant leave to appeal to consider, inter alia, the question whether the High Court was legally justified to substitute the findings as recorded by the Departmental Promotion Committee of Ayub Medical College relating to the promotion of the petitioner and the respondent No.

1. Since short points of law are involved, the office is directed to set down the main appeal, on its present record, for final hearing within period of six months. However, the parties may file additional documents with the permission of the Court.

7. In the circumstances of the case, the question pertained to fitness for promotion as the Honourable Court observed: In the instant case, the Promotion Committee seized of the issue of inter se seniority of appellant and respondent No. 1 was not considering the question of eligibility of respondent to be promotion or to hold a certain post but her fitness with reference to the service record and having examined the comparative merits recommended the appellant to be promoted and to be senior to respondent. The Honourable Court concluded as under: For what has been discussed above, this appeal is partly allowed and while upholding the impugned judgment insofar as it annulled the notification dated 13.8.20o1, we direct the concerned Promotion Committee to decide the matter afresh within two months of the receipt of this judgment.

8. The point worth noting from the cited case is that the interference of the High Court in an issue of fitness for promotion was a point for determination, as such, the ruling couldn't be of be of any help to the petitioner.

9. For the foregone reasons, we find this petition as devoid of merit. It is, thus, dismissed. JK/156/P Petition dismissed.