2016 PLP (C (PLC(CS))

SHAHID MUBEEN, J.

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed that the respondents may very kindly be directed to promote the petitioner to the post of Assistant Director (Food) BPS-17 right from the date of occurring of the vacancies i.e. 2003 when he took over the charge of the post of Assistant Director (Food), with all consequential back benefits.

2. Briefly the facts of the case are that the petitioner was appointed as Assistant Accounts Officer in the Food Department through Punjab Public Service Commission. It is further asserted in the writ petition that he became eligible for promotion to the post of Assistant Director (Food) BPS-17 in the year 2006 which post is lying vacant with the department since 2003 and the petitioner is holding the post of Assistant Director (Food) since 04.08.2003. However, the petitioner was considered by the Department Promotion Committee (DPC) but he was deferred on the following grounds:-- "His qualification is M.Com. He joined Food Department in 1999 as Assistant Accounts Officer through Punjab Public Service Commission against initial requirement quota. He has more than seven years experience at his credit. His ACRs upto the year 2008 are complete and satisfactory. The ACR for the period 04.03.2008 to 13.08.2008 is pending with C.O. At present one enquiry on account of criminal negligence for non-ensuring safety of Govt. wheat in D. G. Khan District is pending against him. No recovery/printed draft para is pending against him. He is not clear for promotion due to pending enquiry."

3. It is contended by the learned counsel for the petitioner that pending enquiry is no ground for deferment of promotion. On the other hand learned Assistant Advocate General contends that he is a civil .servant, hence writ is not competent. In reply to this contention of the learned Assistant Advocate General, learned counsel for the petitioner contends that when a person is deferred for promotion on account of some pending enquiry then it becomes a case of fitness against which appeal before the Punjab Service Tribunal is not competent.

4. Arguments heard. Record perused.

5. It is an established law laid down by the Apex Court that pendency of enquiry and even minor penalty cannot come in the way of promotion. In the present case the departmental representative who produced the record did not disclose any penalty available in the petitioner's record except pendency of inquiry. Reference may be made to 2003 PLC (CS) 1496, 2008 PLC (CS) 1019 and 2009 PLC (CS)

40. When a civil servant is deferred for promotion due to pendency of some enquiry the case does fall within the ambit of fitness and against that order appeal before the Punjab Service Tribunal is not competent.

6. In the attending facts and circumstances of the case, this Court has no option but to accept the writ petition. The respondents are directed to place the petitioner's promotion case before the Departmental Promotion Committee within a period of two months positively from the receipt of certified copy of this order. The Departmental Promotion Committee shall consider the petitioner's case fairly, justly and in accordance with law, rules and regulations. This exercise must be concluded within two months and result thereof be conveyed to the Deputy Registrar (Judicial) of this Court. This writ petition is disposed off in the above terms. ZC/A-69/L Petition accepted.