Stereo H.C.J.D.

A 38
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE, MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
W.P. No.19596 of 2021
Jam Siraj Ahmad Versus Govt. of Punjab, etc.

JUDGMENT

Petitioner by: Mr. M. Sohail Iqbal Bhatti, Advocate

assisted by Mr. Muhammad Atif Aziz,
Advocate.

Respondents by: Malik Shoukat Mahmood Mahra, AAG

with Nadeem Sala ud Din, Law Officer,
Excise & Taxation Department.

Date of hearing: 10.3.2022.

“Let them suffer” may be a command of expediency but we

cannot approve it when, “give them their due” is a command
of justice, which prima facie appears to have been denied to
them out of indignation.”

(Per Justice Ejaz Afzal Khan in 2013 SCMR 1150)

MUHAMMAD SHAN GUL, J:- Through this judgment

the titled constitutional petition is sought to be decided.

2. The petitioner is a civil servant working in the Excise &

Taxation Department, Province of Punjab, who has been

denied, and deferred for, promotion, on the pretext that a minor

penalty of withholding of increments for two years was

imposed on him. An order dated 02.11.2021 has, therefore,

been brought under challenge.

3. Since the matter evidently as also in actual fact relates to

the question of fitness of a civil servant to be promoted to a

W.P. No.19596 of 2021 2

higher post and not his eligibility this Court has, and therefore

is, exercising jurisdiction available to it in terms of Article 199

of the Constitution and acknowledged tacitly by Section 4(1)

(b) of the Punjab Civil Servants Act, 1974. Had the question

involved in the matter been about the petitioner’s placement on

the seniority ladder for the purpose of being considered for

promotion or about his years of experience in a particular post

so as to be eligible for consideration or if the petitioner lacked

any essential eligibility factor this Court mindful of the law laid

down in “Muhammad Anis and others v. Abdul Haseeb and

others” (PLD 1994 SC 539) would not have exercised

jurisdiction. However, this is not the case here!

4. Learned counsel for the petitioner submits that not only

that the pretext prevailing with the Provincial Selection Board

(“PSB”) in denying promotion to the petitioner is incorrect and

erroneous but also that the Provincial Selection Board has

reinforced its earlier indiscretion exercised one year back when

it had deferred the petitioner for promotion on the very lame

pretext of his Performance Evaluation Reports not being

available. Learned counsel for the petitioner submits that while

the petitioner did not lay a challenge to such denial of

promotion and exhibited patience, this time round, the

Provincial Selection Board has again exploited the petitioner,

denied him his due, done so on a basis which is erroneous and

not recognized in law and it is, therefore, that in order to protect

his right to be considered for promotion that the petitioner has

W.P. No.19596 of 2021 3

been compelled to approach this Court. Learned counsel for the

petitioner submits that the reasons prevailing with the

Provincial Selection Board in denying promotion to the

petitioner for the second time are bad in law and should be

declared so. Adds that the factor of minor penalty, which, too,

has been brought under challenge by means of an appropriate

appeal, in being taken as a pretext to deny promotion is illegal

both jurisprudentially as also logically.

5. Facts in a nutshell are that the petitioner was appointed in

the Excise & Taxation Department as an Excise & Taxation

Officer in BPS-17 on 24.2.1998. He was subsequently

promoted to BPS-18. The post of a Director in the Excise &

Taxation Department has to be filled by promotion on the

basis of selection on merit from amongst BPS-18 officials

having 12 years service in BPS-17. It is in this scenario that

the case of the petitioner for being considered for promotion to

BPS-19 was sent to respondent No.5, Secretary Regulations,

Services & General Administration Department. In the first

meeting relevant to the case of the petitioner dated 14.9.2020

the case of the petitioner was deferred for promotion on account

of the pendency of a departmental inquiry against him. In terms

of the law laid down in “Maj. Ziaul Hassan, Home Secretary

and others v. Mrs. Naseem Chaudhry” (2000 SCMR 645),

“Muhammad Ayaz Khan v. Government of Sindh and others”

(2007 PLC (CS) 716), “Nazeer-ud-Din v. Government of

Pakistan through Secretary, Passport and Immigration

W.P. No.19596 of 2021 4

Department and others” (2017 PLC (CS) 578) and [A.P. Naidu

vs. General Manager, South Central] Andhra Pradesh High

Court (1983) ILLJ 151:

“When disciplinary proceedings are initiated and when

they are yet to be completed, there is no knowing whether
the petitioner can be found to be guilty of the charges that
may be framed against him and he cannot before then be
punished through either withholding of his promotion or
by non-consideration of his case for promotion. In either
case, it amounts to imposition of punishment violating
both the letter and spirit of the Constitution. Therefore,
the pendency or contemplated initiation of the
disciplinary proceedings against a person must be
considered to have absolutely no impact upon his right for
being considered for promotion.”

6. A passing reference in the denial noting dated 14.9.2020

was also made to incomplete service record of the petitioner.

This premise is as bad and erroneous as the first one and has no

basis in law because it is the duty of the Administrative

Department to get prepared Performance Evaluation Reports

and to keep and maintain the same so that the same could be

used at the time of consideration of the concerned official for

promotion. Kindly see “Secretary, Revenue Division and others

v. Muhammad Saleem” (2008 SCMR 948), 2007 PLC (CS)

Note 9 (not found) and “Liaquat Ali Khan and others v.

Federation of Pakistan through Secretary, Establishment

Division, Islamabad and 2 others” (2020 PLC (CS) 826).

7. Even when this decision was illegal and against trite

jurisprudence mentioned above, the petitioner in line with the

permanence and anonymity ethos of civil service exhibited

exemplary patience, stayed put and did not challenge its

W.P. No.19596 of 2021 5

findings because he was assured by the Regulations Wing that

in a matter of months his case shall again be placed before the

Provincial Selection Board.

8. This petition was admitted to regular hearing and the

respondents were put on notice. According to the reply

submitted by the respondent, the pretext and premise employed

and adopted by the Provincial Selection Board has been

reinforced and but for equally erroneous rhetoric based on an

incorrect and misunderstood appreciation of law, the

respondents have nothing else to offer.

9. I have heard the learned counsel for the petitioner as also

the learned AAG assisted by the Departmental Representative

in the matter.

10. It may be added here that the right of a civil servant to be

considered for promotion contemplated by the Punjab Civil

Servants Act, 1974 is neither illusory nor a perfunctory ritual

and withholding of promotion is considered a major penalty in

terms of the Governments Servants (Efficiency & Discipline)

Rules, 1973. Also, denying promotion to a civil servant

amounts to punishment and no punishment can be imposed

without any inquiry and without affording the affectee an

opportunity of showing cause against the same. None of the

above was even remotely thought of and, therefore, an illegality

was allowed to be perpetuated. The twin erroneous basis for

W.P. No.19596 of 2021 6

rejection only heightens and accentuates the aspect of poor due

diligence.

11. This time round the case of the petitioner was placed

before the Provincial Selection Board on 02.10.2021 and the

petitioner was deferred for promotion on account of the

erroneous belief that the petitioner had been awarded a minor

penalty of withholding of increments for two years. What is

very interesting in this context is that the name of the petitioner

figures at Sr. No.1 in the list of seniority. The decision of the

Provincial Selection Board pertaining to the petitioner reads as

follows:-

“The Board examined the service record, posting profile,

and general reputation of the officer in detail. The Board
was apprised that in the recent past, the officer was
awarded minor penalty of “withholding of increment for
two year” vide order dated 22.03.2021. The Board in its
collective wisdom observed that the officer did not have a
competitive advantage as compared to his other peers.

Therefore, the officer is deferred for promotion to the post

of Director Excise & Taxation (BS-19) with the
observation Special Report specifying whether the officer
has achieved objectives/targets to be fixed by the
Department or otherwise may be sought over and above
his PER for the same period.”

12. While this rejection on the face of it is violative of the

law laid down in “Deputy Inspector General of Police,

Gujranwala and others v. Anwar Saeed, Inspector Police and

others” (1998 SCMR 552) and “Captain Sarfraz Ahmad Mufti

v. Government of the Punjab and others” (1991 SCMR 1637)

and similar other precedent cases, what is equally objectionable

is the irrelevant consideration weighing with the Provincial

W.P. No.19596 of 2021 7

Selection Board in deferring the case of the petitioner and

which consideration is entirely gratuitous, outrightly

unwarranted and, therefore, inexact. The observation that his

performance may be monitored for one year and a special report

over and above his Performance Evaluation Report be made

available is, to say the least, absolutely misdirected, misaimed

and a clear case of the decision-maker being dictated by an

improper motive and an absolutely irrelevant consideration.

This observation borders on being wednesbury unreasonable

inasmuch as the decision-maker has not directed his attention to

the correct question and has allowed itself to be influenced by

an extraneous consideration.

13. It may also not be out of place to state here that this

observation is also invidious because in the case of all others

who have been considered for promotion and who have been

promoted or deferred no such additional requirement has been

imposed and the same has only been brought to bear on the

proceedings of the case of the petitioner. It may be safely stated

here that this observation is not only outrightly erroneous but

also reflective of there being more in the matter than meets the

eye. On this count, the decision of the Provincial Selection

Board with reference to the petitioner, reeks of malice and

seems to be rooted in ulteriors.

14. While this Court is mindful that it cannot substitute its

own opinion for that of the competent authority in the matter of

W.P. No.19596 of 2021 8

determination of fitness for promotion because the law vests the

authority in this respect in the Executive Branch of the

Government but through the medium of judicial review the role

of this Court is to ensure that the intent of the law maker as

contained in a statute is stimulated and upheld. Hence,

whenever an Executive Authority transgresses its legal limits,

operates in a manner not recognized by law or for that matter

deplored by law or even when a competent authority acts in a

manner derogatory to trite and declared case law, this Court

through the medium of judicial review can order for the

correction of such an approach so as to put things back on an

even keel. Hence, the present decision should be viewed in this

context.

15. The imposition of minor penalty has never been held to

be a legally recognized ground to defer a civil servant for

promotion. In terms of the law laid down in “Muhammad Yasin

v. Secretary, Government of Punjab and others” (2007 SCMR

1769), “Mrs. Sanjida Irshad, Assistant Director, Nursing,

Bahawalpur v. Secretary to Government of the Punjab Health

Department, Lahore and others” (2008 PLC (CS) 1019) and

“Abdul Rauf v. Government of the Punjab through Secretary

(Food), Civil Secretariat, Lahore and another” (2016 PLC

(CS) 1099) minor penalty is not an obstacle in the way of a

civil servant from being promoted.

W.P. No.19596 of 2021 9

16. In the case of “Deputy Inspector General of Police,

Gujranwala and others v. Anwar Saeed, Inspector Police and

others” (1998 SCMR 552) the Hon’ble Supreme Court of

Pakistan has looked down upon the rejection of promotion in

respect of a civil servant on the ground of imposition of minor

penalty.

17. That, likewise, in the case reported as “Captain Sarfraz

Ahmad Mufti v. Government of the Punjab and others” (1991

SCMR 1637), again, the Hon’ble Supreme Court of Pakistan

approved and upheld a decision of this Court in which reliance

of the Executive Branch of the Government on a minor penalty

for the purpose of rejecting a case for promotion was looked

down upon and discarded since in the opinion of the Hon’ble

Apex Court minor penalties could not stand in the way of a

civil servant from being considered for promotion.

18. In “Muhammad Afzal Khan v. Government of Punjab

through Secretary to Government of the Punjab, C&W

Department and another” (2009 PLC (CS) 40), this Court

declared the basis of imposition of minor penalty as a ground

for rejection of a case for promotion to be illegal.

19. Again in “Mian Ali Muhammad v. Secretary,

Establishment Division, Government of Pakistan and 3 others”

(2003 PLC (CS) 1425) this Court reiterated the trite position of

law that minor penalty could not stand in the way of a civil

servant from being promoted. However, one of the classic

W.P. No.19596 of 2021 10

judgments on the present subject is the one reported as “Sh.

Muhammad Riaz v. Government of the Punjab through

Secretary, Communication and Works and another” (2003 PLC

(CS) 1496) in which a Single Bench of this Court put to rest all

misgivings entertained by the Executive about treating the

imposition of minor penalty as a ground for rejecting a case for

promotion. The late Justice Syed Jamshed Ali Shah, an expert

in administrative and service law matters, lucidly held in the

case reported as “Sh. Muhammad Riaz v. Government of the

Punjab through Secretary, Communication and Works and

another” (2003 PLC (CS) 1496) that,

“12. What remains to the discredit of the petitioner is the

minor penalty of 'censure'. I may however, observe that in
Ch. Yar Muhammad Duriana v. Government of the
Punjab and another (1992 PLC (C.S.) 95) decided on
25-11-1990) promotion was declined to a civil servant on
the basis of a minor penalty of "censure". This Court
interfered in the matter and the judgment of this Court
was affirmed by the Hon'able Supreme Court in the case
of Captain Sarfraz Ahmad Mufti supra (decided on
14-4-1991). It may be clarified that a minor penalty,
standing by itself, cannot be considered as a disqualifying
factor and this so emerges from the instructions of the
S&GAD Department contained in the Letter No.SOIV
(S&GAD) 1-75/ 67(Policy), dated 7-1-1969 (O&M I O
Establishment Manual Volume-II (Revised) 1974 Edition
(pages 123-124) in the following words:--

"(c) If the Appointing Authority has passed

an order under rule 6 (ii) of the West
Pakistan Government Servants (Efficiency
and Discipline) Rules, 1960, that formal
enquiry should be held and has decided that
the allegations, established would call fora
major penalty.

If the Authority is of the view that the

allegations, if established, would call for a
minor penalty, then such an enquiry may be
ignored for the purpose of withholding of
promotion of a person, who is otherwise
suitable for it." (emphasis supplied)
W.P. No.19596 of 2021 11

I may add that, in fact, withholding of promotion of a

civil servant only on the basis of a solitary penalty of
censure attracts the rule of double jeopardy because a
civil servant who commits an actionable wrong cannot
again be punished for the same wrong for which he had
already been punished.”

20. Even in neighboring India the pretext of a minor

punishment so as to refuse promotion has been looked down

upon and deprecated:

(2008 (5) MLJ 350 Subramanian v. Government of Tamil

Nadu (Madras High Court):

According to him, it was only a minor

punishment and hence, the petitioner could not be
denied promotion and the said punishment would
not stand in the way of giving promotion to the
petitioner, while considering his service record
from 1985 onwards. The petitioner was
admittedly imposed punishment of stoppage of
increment for two years without cumulative
effect, as per G.O.(2D) No.49, dated 16.10.2000.
As contended by the learned counsel for the
petitioner, it could be construed only as a minor
punishment and solely based on the same, he
could not be denied further promotion.

“AIR 2010 SC 1884 (Supreme Court of India) Jagat Narain

v. Food Corporation of India & others”:

6…..Therefore, having regard to the circulars

dated 13.12.2001 and 19.12.2001, neither the
pendency of minor penalty proceedings nor the
imposition of minor penalty by way of recovery of
Rs. 5000/- would come in the way of the employee
being considered for promotion or being promoted.
It therefore, follows that there was no justification
for cancelling the said promotion dated 24.1.2005.

21. In this view of the matter, order dated 02.11.2021 is set

aside and declared to be of no legal effect. The Provincial

Selection Board is directed to reconsider the case of the

W.P. No.19596 of 2021 12

petitioner in line with what has been observed in the preceding

narrative.

22. Allowed in the above terms.

(MUHAMMAD SHAN GUL)

JUDGE

Approved for reporting.

Judge
*Waseem*