2003 PLP (C (PLC(CS))

In this case petitioner was recommended for one step promotion along with 13 other members of the raiding party by DIG, IGP and Home Secretary but in spite of that he was not granted the said promotion. It was held that case of the petitioner being at par with other members of the raiding party he should not have been given discriminatory treatment. Hence the order of respondent was discriminatory and in violation of Article 25 of the Constitution. (ii) Writ Petition No.2445 of 1995: In this case also it was held that there was no reason for discriminatory treatment meted out to the petitioner for not considering him for out of turn promotion like S.I Waqar Ahmad who was promoted on the basis of same encounter. (iii) Writ Petition No. 17474 of 1997: In this case IGP had withdrawn recommendation of his predecessor for out of turn promotion of the petitioner in spite of the fact that Secretary, Home Department and the Governor had ordered one step out of turn promotion to the petitioner. It was held that he could not undo the order of his predecessor and could not thereby legally set at naught the orders passed by the Governor of the Punjab and the Home Secretary; and (iv) Writ Petition No. 17232 of 1997: In this case recommendation of IGP for giving out of turn promotion to the petitioner was decided to be placed before the Provincial Selection Board for consideration but before the same could be placed before the said Board the new IGP had withdrawn that recommendation. It was held that previous order passed by the IGP could not be withdrawn when all the other officials who participated in the operation were given out of turn promotion.

9. None of the aforesaid case-laws is applicable to the facts and circumstances of this case inasmuch as the aforesaid cases relate to the period when the policy of granting out of turn promotion was in vogue and it is neither a case of discrimination as the venture was undertaken and completed by the petitioner alone. His case was not recommended by the IGP, neither recommendation of any former IGP was withdrawn by the subsequent IGP.

10. Writ petition is strongly opposed by the learned counsel for the respondents.

11. Arguments heard. Petitions, its annexures and comments furnished by the respondents perused.

12. In this Constitutional petition claim of the petitioner is two fold:

(i) That letter dated 4-4-2000 regarding change of policy did not affect his case as his eligibility for right to one step out of turn promotion was only conditioned with the arrest of the accused and recovery of double cabin vehicle, hence on fulfillment of those conditions he ipso facto became eligible and entitled to the aforesaid right and respondent No. 1 was bound to honour his commitment by recommending and forwarding his case to respondent No.4 viz. the Home Secretary, Government of the Punjab; (ii) secondly right of the petitioner to be promoted had accrued in 1997 when the accused persons were arrested and the double cabin vehicle was recovered. Therefore, right which had already been accrued could neither be deemed to have been withdrawn nor rescinded by the aforesaid letter which was issued in the year 2000.

13. According to the learned counsel for the petitioner in this case, question of petitioner's eligibility and fitness for promotion to the next higher rank was not involved as it stood determined on the fulfillment of the conditions by the petitioner and there was nothing to be determined as such by the respondents. The petitioner had automatically become eligible and entitled to the promotion and it only required a formal recommendation and order in that regard by respondents Nos. 1 and 4 respectively.

14. If the above argument is accepted even then the petitioner being a Government servant has no vested right to be promoted. Promotion of a civil servant is neither a vested nor a Constitutional right.

15. Contention that since respondent No. 1 had announced the out of turn promotion be was bound to recommend and forward the case of the petitioner is also not tenable because competent authority to grant promotion was the Home Secretary of the Punjab Government (respondent No.4) and after the change of policy regarding out of turn promotion policy instructions had been issued by the Home Department that no such case in respect of police officers/officials would be considered. It is the prerogative of the State/Government to formulate policies and its functionaries are bound by the same.

16. In view of the aforesaid policy respondent No.1 was not competent to have recommended and forwarded the petitioner's case to the Home Department. Moreover, out of turn promotion was announced by way of reward and a reward cannot be claimed as of right. Before granting the award the authority announcing it can vary its nature as was done in the present case. It is well settled that authority which has the power to make an order has also power to undo it.

17. Second told of petition's claim relates to tire principle of poenitntiae, according to, which order passed by a competent authority cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual.

18. The said principle is obviously not attracted in this case because the order of one step out of turn promotion announced by respondent No. 1 was not implemented or given effect to; the petitioner has not been promoted and inspite of having become eligible for promotion, no vested right to promotion had accrued or was created in favour of the petitioner. Therefore, there was no question of rescinding or withdrawal of a right which had not accrued. Case of the petitioner was, therefore, covered by the policy letter dated 4-4-2000.

19. Prayer in the writ, petition for issuing direction to respondent No.4 to order one step out of turn promotion to the petitioner cannot be granted for the reason that existence of a legal right is the foundation of every writ of mandamus. Since sight to promotion is not a vested right, it cannot be enforced through Constitutional Jurisdiction,

20. For the reasons stated above, this Constitutional petition is hereby dismissed. H.B.T./M-2008/L Petition dismissed.