2007 PLP (C (PLC(CS))

UMAR ATA BANDIAL, J.

By order of the competent authority dated 3-8-2000, the petitioner was provisionally promoted to the post of Assistant Administrator/Superintendent against the quota allocated to direct recruitment but subject to the condition that the petitioner would be accommodated in the `promotion quota' for the post as soon as the ban was lifted. The respondents maintain that the said provisional promotion order is contrary to the Recruitment and Service Regulations of the Evacuee Trust Property Board, 1984 ("Regulation"). The impugned order, dated 27-12-2004 therefore, withdrew the said provisional promotion order without giving any reasons. By order of 29-6-2005 the Appellate Authority has also affirmed the impugned order but again without giving reasons.

2. The petitioner is not a civil servant under the rule laid down Muhammad Mubeen v. Salam and others v. Federation of Pakistan PLD 2006 SC 602 and consequently has no remedy available before the learned Federal Service Tribunal. Hence this petition.

3. Learned counsel for the petitioner assails the impugned order withdrawing the petitioner's provisional promotion on the ground that Regulation 3 (ibid) is merely for administrative convenience and not of mandatory effect. The allocation of posts to be filled by two different methods of appointment can allegedly be relaxed by the competent authority as was done in the petitioner's provisional promotion order, dated 3-8-2000. More importantly, it is contended that the petitioner has worked as an Assistant Administrator/Superintendent for four years prior to the impugned order and again he is working in the same post on current charge basis even after the issuance of the impugned order. This is evident from the office order, dated 17-4-2005 attached to the petition. Consequently, learned counsel relies on locus poenitentiae as a ground for seeking the enforcement of the petitioner's provisional promotion order.

4. The learned counsel for the respondent-Board has opposed the relief prayed on grounds of illegality of the said provisional promotion order for violating Regulation 3 (ibid) that provides as follows:-- "

3. Appointment to the various posts in the Board shall be made by promotion, transfer or initial appointment as specified below:-- S. No. Name of the post Method of appointment

3. Assistant Administrator/ Superintendent (i) 50% by promotion from amongst the Inspectors/Assistants in the Board subject to the passing of departmental examination.

5. Learned counsel has not been able to show any provision in the Regulation that give mandatory effect to its seat allocation made for the two methods of appointment to the post in question. Nevertheless, the reservation made in the Regulation merits compliance unless valid grounds exist to promote the object of the law and are in the public interest. Ordinarily, the facts of an individual case would not suffice to displace such a seat reservation formula. Nor indeed in the present case, do the unhappily worded conditional terms of the provisional promotion order or the existence of a ban on promotion, serve as sufficient grounds to ignore the reservation made in the Regulations. However, the fact that the said order was acted upon does create consequences. The satisfactory work done by the petitioner for longer than four years in the promoted post gives rise to a legitimate expectation in the petitioner to retain his rank apart from imposing a bar of locus poenitentiae on the respondents because that provisional promotion order is issued by the Competent Authority. Learned counsel for the petitioner has further informed that during the interregnum two officers, namely, Asif Raza and Bashir Ali; both junior to the petitioner, have been promoted without the petitioner being considered by the DPC for promotion. Such non-consideration suggests the object of the impugned withdrawal order, dated 27-12-2004 to be the denial of promotion to the petitioner rather than for the rectification of an apparent wrong committed by the provisional promotion order.

6. Learned counsel for the respondents denies that any officer junior to the petitioner have been promoted. As a departmental solution he assures that the case of the petitioner shall be taken up for consideration by the DPC within the next eight weeks. The assurance given by the learned counsel for the respondents has curative and corrective potential. This coupled with the unhappy ring of favour in the rescinded provisional promotion order dated 3-8-2000, persuades the Court to allow the respondents an opportunity to redress the petitioner's grievance. In saying so, the respondents must beware that disowning orders passed by its Competent Authority would foster indiscipline apart from demoralizing its employees.

7. Accordingly, it is directed that the respondents' DPC shall at the earliest possible take up for consideration the petitioner's case for promotion on merits. This shall be accomplished within eight weeks from the date of receipt of a certified copy of this order. Failing such consideration, the petitioner may approach the Court to rule on his pleas of locus poenitentiae and legitimate expectations in accordance with law. Disposed of with the foregoing directions. M.H./A-119/L Order accordingly.