2005 PLP (C (PLC(CS))

"If an authority disregards the opinion of any Board constituted under any law, rules or regulations then it should give its reasons or grounds for such disapproval. Mere writing the words "disapproved" or "rejected" will not suffice."

6. In the instant case too, as stated earlier, the disapproval of competent Authority of the recommendation of the Board in respect of appellant's promotion by writing four words. "Time has passed not approved." was not a valid and reasonable ground. In any case, the appellant cannot be made to suffer on account of inaction, omission or error on the part of the departmental functionaries in late convening of the meeting of P.S.B‑II coupled with late placement of the summary before the authority competent to accord approval. In that eventuality the appellant has been allowed pro forma promotion from the date his next junior was promoted to entitle him to the financial benefits which would have accrued to him if he would have been promoted along with his batch‑mates. In this behalf reference can be made to the cases of Iftikhar Ullah Malhi v. Chief Secretary, Sindh and others, 1998 SCMR 736 and Walayat Ali Mir v. P.I.A.C and another, 1995 SCMR 650, In both the cases, the petitioners were deprived of promotion of which they were entitled under the rules. They agitated their claim upto the highest level. Meanwhile, they were retired from service and the apex Court directed that they would be entitled to all such benefits which would have occurred to them in case they have been promoted at the relevant/proper time on the recommendation of the Selection Board. The facts and circumstances of those two cases are fully applicable to the facts of the instant appeal. It may be pointed out that in the very similar circumstances/situation one Mr. Subhraj, P.D.S.P. was allowed promotion to the post of Superintendent of Police (BS‑18) w.e.f. 29‑4‑1999 i.e. only a day before he attained the age of superannuation viz. 30‑4‑1999, vide Notification dated 4‑5‑1999 issued by the Respondent No. 1.

7. Accordingly, following the dictum, laid down in the above referred cases. We accept this appeal, set‑aside the impugned orders and direct the Respondents to allow pro forma promotion and the financial benefits to the appellant w.e.f. 13‑2‑2000. There shall be no order as to costs.

8. Announced in open Court. Sd.) Justice (Retd.) Abdul Ghani Shaikh, Chairman. (Sd.) Yousaf Ali Mirza, Member‑I My Note of dissent is appended. (Sd.) (Nur Ahmad Shah, Member‑II NUR AHMAD SHAH (MEMBER‑II).‑‑‑It is a well‑settled principle that a civil servant cannot claim promotion as a matter of right unless it conforms to the prescribed parameters and is routed through the laid down procedure. Besides possessing eligibility, the civil servant should, in normal circumstances, be available to hold a promotion post.

2. The case for promotion is put up before an appropriate Departmental Promotion Committee (DPC) or Selection Board (SB) for consideration. After its clearance by the DPC or SB, as the case may be, it is submitted to the competent authority who may either approve or reject‑ the recommendation or refer it back for reconsideration. Thus a promotion cleared by the DPC or SB attains finality only when it is endorsed by the competent authority. Mere clearance by the Committee or the Board will not create a vested‑right in favour of the officer so cleared. Else, the competent authority will be reduced to a cipher and its role in promotion matters will become redundant rather a waste of time.. In fact, the competent authority's role in the matter being decisive is of prime importance. However, there is an important proviso which requires the competent authority to exercise discretion in such matters judicially, within the bounds of law and rules and free from arbitrariness and unreasonableness.

3. In the instant case, the Selection Board cleared the promotion on 12‑2‑2000 and the summary for the approval of competent authority who, in this case was Governor, reached the latter's office on 14‑2‑2000 which was the appellant's date of superannuation. The Governor desired legal opinion and the matter was referred to the Law Department on 19‑2‑2000. The Law Department's advice dated 23‑2‑2000 reads:‑‑ "Since the Selection Board has recommended for promotion two days before the retirement the competent authority, if so desire, consider him for promotion w.e.f. 13th Feb. 2000 i.e. one day before his retirement." The Governor' overruled the recommendation observing, "Time was passed not approved".

4. The Governor did not approve the promotion because the appellant, in the meanwhile, retired an superannuation. His order though short is precise and it is based on cogent reason. It cannot be dismissed as rash or arbitrary or whimsical. The evidence on record suggests that the competent authority took the decision after due thought and application of mind. The summary reached the Governor's Secretariat on 14‑2‑2000 i.e. the date on which the appellant ceased to be in service due to his retirement. The Governor could well have ignored the summary on this ground. Instead, he referred the matter to the Law Department for advice. The Law Department rather than taking pains to examine the moot point involved in the reference whether the appellant who had since retired could still be considered for promotion, simply advised the competent authority to "if so desire, consider him for promotion w.e.f. 13th February, 2000 i.e. one day before his retirement". The legal opinion on which the appellant has based his claim is sadly, vague and irrelevant.

5. There is no substance in the appellant's plea that he was deprived of promotion because of delay or inaction. The facts reveal the opposite. The IG Police proposed the promotion on 7‑2‑2000 stressing that the appellant was due for retirement on 14‑2‑2000. The Selection Board okayed it on 12‑2‑2000. The papers reached the Governor's Secretariat on 14‑2‑2000 for approval. The Governor referred the matter to the Law Department on 19‑2‑2000. The case, thus, received proper attention and was processed with maximum promptitude at every level.

6. The appellant is not the only one to have missed the promotion just on the doorstep. Many officials though fully eligible for promotion in all respects, meet the same fate for want of timely procedural formalities and they retire without getting the benefit of promotion.

7. The plethora of case laws cited by the appellant deal with the situations involving bias or prejudice or re-fixation of seniority. No such vitiating circumstance exists in the case before us. The appellant has no grievance of mala fide or prejudice against the Governor. His is not a case of supersession either. It is a simple case of promotion which unfortunately for the appellant, could not materialize despite the department's sympathetic attitude, due to his retirement from service before the competent authority could accord its approval. Consequently, the case laws relied on by him will not avail the appellant.

8. In respectful dissent with my senior colleagues, I hold that the impugned order of the competent authority is proper and free from error or any legal lacuna. There is, thus, no merit in the appeal. No order as to costs. ORDER OF THE COURT IN APPEAL By majority view in terms of rule 25 of the Sindh Service Rules, 1974, the appeal is accepted, impugned orders are set aside and the respondents are directed to allow pro forma promotion and the financial benefits to the appellant with effect from 13‑2‑2002. There shall be no order as to costs. H.B.T./22/KST Appeal accepted.