1999 PLP 997 (YLR)

(e) Constitution of Pakistan (1973)‑‑‑ ‑‑‑Art. 25‑‑‑Equality of citizens‑‑‑Public functionaries had no right to violate provision of Art. 25 of the Constitution. I.A. Sherwani's case 1991 SCMR 1041 fol. Sardar Latif Khan Khosa for Petitioner. Khadim Nadeem Malik, Addl. A.‑G. for Respondent. Brief facts out of which the present writ petition arises are that the petitioner was appointed as Naib‑Tehsildar in the excluded area of D.G. Khan on 9‑9‑1961. The petitioner was posted political Naib‑Tehsildar in the excluded area of D. G Khan on 9‑9‑1961. His services were converted from political Naib‑Tehsildar of the excluded areas into the permanent post and included in the regular cadre of Naib‑Tehsildar, Multan Division. The seniority list was issued on 30‑3‑1974 in which the name of the petitioner appeared at Serial No.

122. The petitioner being aggrieved by the aforesaid seniority list preferred representation for fixation of the seniority keeping in view of the date of original appointment as Naib‑Tehsildar in excluded area on 19‑9‑1961. The representation of the petitioner was accepted; Consequently, B.O.R. re‑fixed the seniority list and the name of the petitioner was placed at Serial No.35‑A. The petitioner submitted representation for grant of pro forma promotion before the Additional Chief Secretary in the year 1996. The working papers were prepared in the following terms:‑‑ "The matter is placed before the D.P.C. for considering the grant of proforma promotion as Tehsildar to Sardar Muhammad Saeed Khan Ghurchani w. e. f. 11‑7‑1970." The matter was placed before the D.P.C./Selection Committee consisting of Member (Revenue), Board of Revenue, Punjab Secretary (Revenue), Board of Revenue, Punjab, and Deputy Secretary Regulation Government of the Punjab and the case of the petitioner was recommended by the D.P.C./Selection Committee in the following terms:‑‑ "He could not get promotion as Tehsildar alongwith his junior due to wrong fixation of his seniority as Naib‑Tehsildar and on account of late passing the Tehsildari Departmental Examination. The passing of Departmental Examination was the requirement prescribed by the Member (Revenue)/Authority although not provided in the Service Rules at the relevant time. The Committee examined his service record and having found it satisfactory, recommended the grant of proforma promotion as Tehsildar w. e. f. 11‑7‑1970, the date when his junior Mr. Bashir Ahmad Kamalana was promoted as Tehsildar on regular basis. " The recommendation of D.P. C./Selection Committee has not been forwarded for approval of the Chief Minister by the competent authority till date, Secretary Regulation raised certain queries vide departmental memorandum, dated 19‑5‑1997 and the competent authority submitted the report but in spite of that the case of the petitioner was not placed before the Chief Minister since 1997 till date. The petitioner also submitted representation on 8‑4‑1999 through proper channel to the Additional Chief Secretary for move‑over in Grade‑18 but the respondents did not take any action and the petitioner was constrained by the aforesaid circumstances filed this writ petition with the following prayer:‑‑ "that this petition may kindly be accepted and the respondents Nos.l and 2 may be directed to implement the recommendation of the Depart mental Promotion and Selection Committee, dated 12‑2‑1997 and to accord the promotion to the petitioner as Tehsildar with effect from 11‑7‑1970, Extra‑Assistant Commissioner with effect from 1‑8‑1978 and Assistant Commis sioner BPS. 18 with effect from 1‑12‑1997 the date when he reached the maximum of BPS. 17." Learned counsel for the petitioner contended that the Departmental Promotion Committee/Selection Committee recommended the case of the petitioner and found the petitioner eligible to be promoted and is entitled for pro forma promotion but on account of the inaction of the public functionaries the petitioner did not receive his due right till date. He further urged that the respondents did not decide the case of the petitioner on account of malice and under the influence of the politician, therefore, action of the respondents is not in accordance with law laid down by the Honorable Supreme Court in Zahid Akhtar's case PLD 1995 SC 530; that it is inherent right of the petitioner that the recommendations of the D.P.C./Selection Committee must be placed before the competent authority;, that after recommending the case of the petitioner by the D.P.C./Selection Committee pending is only for formal requirement of law to place the case of the petitioner before the competent Authority for approval; that during this period the juniors were also promoted and the petitioner is debarred from his due right for promotion; that the action of the respondents is without lawful authority and mala fide.

2. Learned A.A.‑G., appeared on Court's call. He contended that writ petition is not maintainable as the matter relates to the terms and conditions of civil servant by virtue of Article 212 of the Constitution read with section 4 of the Service Tribunal Act.

3. In rebuttal, petitioner's counsel stated that D.P.C./Selection Committee has not passed any final order, therefore, the petitioner has no other alternate remedy to agitate the matter before the Department or to file an appeal before the Service Tribunal, therefore, petitioner has only remedy to invoke the Constitutional jurisdiction of this Court.

4. I have given my anxious consideration to the contentions of the learne4 counsel for the parties. The petitioner has filed this writ petition to grant him pro form promotion, therefore, writ petition is not maintainable as the law laid down by the Honorable Supreme Court in Aqeela Asghar's case PLD 1991 SC 1118. The contention of learned A.A.‑G. has no force that this Court has no jurisdiction to look into the matter. This Court has ample powers to give the directions to the public functionaries where the public functionaries are at fault as the principle laid down by the Honourable Supreme Court PLD 1981 SC

612. It is admitted fact that the case of the petitioner was placed before the D.P. C./Selection Committee, who recommended the case of the petitioner. The case of the petitioner was not placed before the competent authority for approval. It is also settled law that nobody should be penalized by the act of the public functionaries as the principle laid down by this Court in Abdul Latifs case PLD 1994 Lah.

3. It is also admitted fact that the respondents have promoted the junior persons and did not finalize the case of the petitioner till date. It is also settled proposition of law that manner of exercising powers by the respondents is also termed as mala fide as the principle laid down by the Honourable Supreme Court in Agha Shorish Kashmiri's case PLD 1969 SC

14. It is also admitted fact that the juniors were promoted and petitioner was not granted pro forma promotion till date and respondents did not pass any final order till date. This bring the case of the petitioner that the petitioner is not treated in accordance with law.

5. It is the duty and obligation of the public functionaries to act in accordance with law without fear, favour and nepotism. Since the public functionaries did not submit the case of the petitioner till date before the competent authority for approval. This action of the respondents is in conflict with Article 25 of the Constitution. It is settled proposition of law that the public functionaries have no right to violate Article 25 of the Constitution as the law laid down by Honourable Supreme Court in I.A. Sherwani's case 1991 SCMR 1041.

6. In the interest of justice and fair play, let a copy of writ petition be sent to respondents Nos.1 and 2 who are directed to finalize the case of the petitioner preferably within one month, as the petitioner has completed more than thirty eight years of his service. It is also settled principle as our society is based on status conscious. It is inherent right of the petitioner in case the petitioner has fulfilled all the requirements then respondents are duty bound to give him due credit of promotion qua his status so that after retirement he should be in a position to write with his name that he has been retired as Deputy Commissioner. He is further directed to submit report to the D.R.(J) of this Court within the stipulated period.

7. Petitioner's counsel is also directed to hand over copy of writ petition to the learned A.A.‑G., who shall send the same to respondents Nos.l and 2 for necessary action and compliance. Disposed of. Order accordingly. Q.M.H./M.A.K./M‑1081/L .