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    Justice Adnan Judgment On Seniority

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    Amna Usman

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    Justice Adnan Judgment On Seniority

    Uploaded by

    Amna Usman
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    Justice Adnan Judgment on Seniority

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    Justice Adnan Judgment On Seniority

    Uploaded by

    Amna Usman

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    © All Rights Reserved
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    of 3

    IN THE HIGH COURT OF SINDH KARACHI

    Before:
    Mr. Justice Adnan-ul-Karim Memon
    Justice Mrs. Kausar Sultana Hussain

    Constitutional Petition No.D-5282 of 2021


    (Maqsood Ahmed v. the Secretary and 02 others)

    Malik Altaf Hussain, advocate for the petitioner


    Mr. Ali Safdar Depar, AAG

    Date of hearing &


    Order : 18.04.2022

    ORDER

    Adnan-ul-Karim Memon, J. Petitioner seeks proforma promotion to the post of


    Assistant Director (BPS-17) in terms of minutes of Departmental Promotion Committee
    (DPC), inter-alia on the ground that the issue of promotion of the Petitioner falls within
    the purview of fundamental rights and that the same cannot be denied as provided
    under the Constitution. Petitioner has also cited various reasons whereby his case for
    promotion was not presented for consideration in DPC and he stood retired in February
    2021. Petitioner has asserted that despite several representations made to the
    Respondents to consider his case for promotion during his tenure of the service as done
    with the junior officers who were already considered; the representations of the Petitioner
    were ignored in violation of the Sindh Civil Servants (Probation, Confirmation, and
    Seniority) Rules, 1975. Per petitioner, the respondent vide letter dated 11.8.2021 corrected
    his seniority and placed him at Sr. No.1 on the Seniority List. Per petitioner, the respondent
    vide letter dated 11.8.2021, informed the Secretary College Education Department,
    Government of Sindh, about the representation/appeal regarding the seniority issue of the
    petitioner and stoppage of DPC, however, the respondents vide letter dated 13.8.2021
    convened the DPC to consider promotion cases of Superintendents (BPS-17) to the post of
    Assistant Directors (BPS-17) College Education Department and the case of the petitioner
    was ignored; that there was nothing adverse against the Petitioner during his tenure of
    service, as neither he was facing any disciplinary proceedings nor any departmental
    inquiry was pending against him. Petitioner lastly submitted that his case for proforma
    promotion to the next rank with his batchmates, after he retires from service, is his service
    right under the law.

    2. We have heard learned counsel for the parties and perused the material available
    on record.

    3. It is settled law that where the law requires an act to be done in a particular
    manner, it ought to be done in that manner alone, and such a dictate of law cannot
    be termed as a technicality. Reliance has been placed on Muhammad Anwar and
    others v. Mst. Ilyas Begum and others (PLD 2013 SC 255). The record reflects that the
    petitioner was appointed as Junior Clerk in Education and Literacy Department in
    1983 and subsequently, he earned promotion as Office Assistant in 1995 and lastly he
    was promoted to the post of Office Superintendent at Government Degree College,
    Sakrand in the year 2005. The record further reflects that due to certain changes in
    School and College hierarchy the seniority issue of the petitioner remained under
    dispute and finally that issue was resolved, however, much water in the intervening
    period had flowed under the bridge and the petitioner retired from service and
    thereafter the respondent convened the meeting of DPC in 2021, however, failed to
    consider the case of the petitioner for promotion to the post of Assistant Director (BS-
    17) being senior-most officers in the seniority list of Office Superintendents. If this is the
    position of the case, on the subject issue, the Honorable Supreme Court of Pakistan in
    the case of Secretary Schools of Education and others v. Rana Arshad Khan and
    others"(2012 SCMR 126) while granting Proforma promotion to retired public servant
    held as under:-

    “Much before the retirement of the respondents, a working paper was prepared by
    the department with regard to their promotion but the matter was delayed without
    any justifiable reason and in the meanwhile, respondents attained the age of
    superannuation. They cannot be made to suffer on account of the departmental
    lapse."

    4. It is a settled principle of law that if service, benefits have accrued to an


    employee but for one reason or the other such benefits could not be awarded to such
    an employee, then, irrespective of the fact of his/her having retired from service, the
    department concerned shall still have to further consider her/his case for such a
    promotion and to allow him/her benefits of such a promotion, even after retirement
    from service.

    5. Promotion is generally an advancement in rank, which is granted based on


    acquiring extra qualifications or enhancement of skills or awarded in lieu of
    longstanding services of the employee as a token of satisfaction and appreciation over
    services rendered by him. The concept of Proforma Promotion is to remedy the loss
    sustained by an employee/civil servant on account of denial of promotion upon his
    legitimate turn due to any reason but not a fault of his own and in cases where a
    temporary embargo was created against his right for such promotion or a legal
    restraint was posed against his claim owing to any departmental proceedings inquiry
    etc. against him and the said obstacle is done away with ultimately then in such a
    situation, his monetary loss and loss of rank is remedied through proforma promotion.

    6. The Honorable Supreme Court in the case of Regarding Putting of Two


    Government Officers Namely Hasan Waseem Afzal and his Wife Farkhanda Waseem
    Afzal as OSD (2013 SCMR 1150), also held that the public/civil servants who were not
    promoted for want of required PERs because of their posting as OSD was not an act of
    their own doing and thus could not be left to suffer for the very reason. It was
    observed that:

    “Their promotion to the next higher, the scale has been denied for want of PERs and
    PERs have not been complied on account of their posting as OSDs which is not an act
    of their own doing. “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

    2
    facie appears to have been denied to them out of indignation and ill will of the high
    ups."

    7. No doubt promotion is not the vested right of a civil/public servant but where
    he is fully qualified for the promotion and there is no tangible clog in his service record,
    he has a right to expect that his case will be considered for promotion under law, rules,
    regulations and eligibility criteria/policy formulated for regulating promotion by the
    Government. Any breach or deviation therefrom for mala fide reasons or due to
    arbitrary act of his superiors or peers or the competent authority is not warranted in
    law.

    8. In view of the position explained above it is to conclude that a civil servant has
    a fundamental right to be promoted even after his retirement through awarding pro
    forma promotion provided his right of promotion accrued during his service and his
    case for promotion could not be considered for promotion for no fault of his own and
    he is retired on attaining the age of superannuation without any shortcoming on his
    part pertaining to deficiency in the length of service or in the form of inquiry and
    departmental action was so taken against his right of promotion.

    9. In view of what has been discussed above, the instant petition is disposed of
    with a direction to the competent authority of Respondents to consider the case of the
    petitioner for proforma promotion to the post of Assistant Director (BS-17), if the
    petitioner is at all entitled to proforma promotion under the law and if he meets the
    criteria, his proforma promotion shall be made by way of Circulation within one week.

    JUDGE

    JUDGE

    Nadir*

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