2004 PLP 1010 (YLR)

The matter came up and was considered by this Court on 1-11-2002. Now the minutes of the meeting of the Departmental Committee were placed on the record and according to these minutes the petitioner was not recommended for promotion on the following grounds: -- (i) A.C.Rs. missing for the year 1998, 1999 and 2000. (ii) The disciplinary case pending, against him. (iii) Advance para. No.98 is pending against him. (iv) Departmental Promotion Examination not passed which is a mandatory condition for promotion.

2. The learned counsel for the petitioner explained that he is not liable if his A.C.Rs. which ought to have been with the administrative wing of the respondent are missing. It was categorically stated that no disciplinary cases are pending as a certificate has already been issued stating that no inquiry is pending against the petitioner. Regarding the said Ground No.(iii) it was stated that this, reason is unexplained. Regarding Ground No.(iv) it was stated that since the petitioner holds a degree equivalent to B.Sc. (Engineering), he is not required to take the Departmental Promotion Examination which was meant only for the diploma-holders. It was observed by his Lordship that the said comments filed by WAPDA do not elucidate these grounds and an order was passed that the concerned official of WAPDA to appear with complete record. It was also directed that the comments be resubmitted in the light of the said submissions of the learned counsel for the petitioner. The needful was not done. The writ petition was admitted to regular hearing on 24-4-2003 noting that the additional comments have not been filed. Notice was issued. Thereafter comments were filed in this Court on 12-5-2003. I find that these are the verbatim copy of the comments filed on 17-10-2001 and found to be inadequate by this Court vide order dated 1-11-2002. Now on 16-10-2003 comments were again filed by the respondent. These are signed by Syed Kazim Hussain Kazmi, Advocate. I may note here that an apology has been sought for filing wrong comments earlier. Further apology was sought for wrongly issuing the retirement order of the petitioner when, in fact, the order was meant for another similarly named employee who. was a diploma holder. In these comments an objection has been taken to the jurisdiction of this Court with reference to section 17(1 b) of the WAPDA Act, 1958 read with Article 212 of the Constitution of the county. Reference has also been made to filing and dismissal of a Service Appeal No.316-R of 1984 by the Service Tribunal. It has also been admitted that the qualification M.S.E.(London) is recognized by the respondent-Authority. It has been objected that the petitioner had to enlist himself as an Engineer with the Pakistan Engineering Council. The various documents referred to is the writ petition qua the equivalence of his qualifications with B.Sc. (Engineering) Degree have not been denied. But I note here that in these comments not a single reason has been stated as to why the petitioner has not been promoted and of course the reasons stated in the said minutes of the meeting are not supported by the respondent in these comments.

3. This case was called on for hearing on 4-10-2003 several times. The learned counsel for the petitioner remained present while none appeared for the respondent. Still I adjourned the case to today. Again the case has been called several times and despite the fact that the respondent is duly represented by a learned counsel whose name stands listed in the cause list for today, no one has turned up for the respondent. It is accordingly proceeded against ex parte.

4. Now in the light of what I have noted above regarding the conduct of the respondent before and during these I proceedings, I find that the respondent had acted in a reckless manner. In the first instance, they proceeded to issue an order announcing the retirement of the petitioner upon attaining the age of superannuation. The petitioner questioned the correctness of this order on the ground that he has not attained the said age so far. Thrice the comments were filed and the respondent persisted that he has been retired. Ultimately an apology was tendered for committing the said blunder.

5. Now there is no denial that the petitioner is possessed of a qualification which has been declared by the concerned Authorities including the respondent itself to be equivalent to B.Sc.(Engineering) Degree. This being so, he is not liable to take any departmental examination. No detail or particulars of any pending inquiry have been provided in any of the said comments submitted thrice in this Court. It is thus to be safely assumed that the certificate issued to the petitioner by the respondent itself that no inquiry is pending against him is correct. Of course, there is nothing in any of the said comments as to what is the said advance para.98 admitted. The missing A.C.Rs. are not a fault of the petitioner. It is for the respondent to maintain the said records properly. In any case since the last more than two years that this case is pending the respondent has not come up with any allegation that any adverse report is attributable to the petitioner.

6. Having thus examined the file I do find that all the said four grounds stated by the Departmental Committee for not promoting the petitioner are absolutely incorrect. This deliberate attempt on the part of the respondent and the said Committee to deprive the petitioner of promotion for which he is otherwise eligible constitutes a mala fide act which cannot be sustained.

7. Now coming to the said objection that the petitioner is required under the provision of. the Pakistan Engineering Council Act, 1976, to be registered with the said Council as an Engineer in order to be promoted, the question stands answered by the Honourable Supreme Court of Pakistan in its judgment in the case of Fida Hussain v. Secretary, Kashmir Affairs and Northern Areas, Islamabad PLJ 1996 SC

490. Thus, there is- no tenable objection against the promotion of the petitioner.

8. Now as to the said objection raised to the jurisdiction of this Court, I may note in the very beginning that the respondent itself has referred to the factum of filing of Service Appeal No.316-R of 1984 in the Service Tribunal and its dismissal. Now the copy A judgment dated 26-1-1985 of the learned Service Tribunal is Annexure 'R' to the first comments filed by the respondent. Now I find that the appeal was dismissed on two grounds. First that it was barred by time and second that since it is a matter of promotion, the appeal is not competent before the learned Tribunal. Needless to state that section 4(1) proviso (b) of the Service Tribunal Act, 1973, bars an appeal before the learned Service Tribunal in the matter of promotion. This answers the said objection.

9. I have already held above that it stands sufficiently established on the face of the. record that the respondent has acted mala fide in this matter. Deliberate misrepresentation has been made in this Court in the matter of reasons for denying the promotion and all of which reasons have been found incorrect with, reference to the corrected stance of the respondent. Now all the reasons stated by the said Departmental Committee for denying promotion to the petitioner are admittedly false and incorrect. The apology tendered is accepted. The writ petition is allowed. The respondent is directed to pass appropriate orders for promotion of the petitioner after considering the matter in a just and fair manner. No orders as to costs.

10. A copy of this judgment be immediately remitted to the respondent for reporting compliance thereof within four weeks of its receipt to the Deputy Registrar Judicial of this Court. H.B.T./M-2368/L Petition allowed.