Full Judgment Text & Judicial Ruling

2007 P L C (C.S.) 957

[Supreme Court of Pakistan]

Presents: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

Dr. Syed SABIR ALI

Versus

GOVERNMENT OF THE PUNJAB through Secretary Health Punjab and others

Civil Appeal No.327 of 2003, decided on 25th October, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, dated 4-11-2002 passed in Appeal No.2490 of 2002).

Civil Servants (Appointment, Promotion and Transfer) Rules, 1973--‑

----Rr. 7 & 8---Constitution of Pakistan (1973), Art.212(3)---Promotion---Considerations for---Appellant, having superannuation, retired from service, whereas he was due for promotion much before his retirement, but was not considered for said promotion on the ground that a restraint order was passed by Service Tribunal in another appeal---Order in said appeal was passed to protect the rights of appellant and authorities were not at all restrained to consider appellant in present appeal for promotion in his own right---Appellant was wrongly prevented to get next promotion and discharge the higher responsibilities as a result of which he was not only deprived of his legitimate right of promotion, but was also caused permanent loss of pensionary benefit of higher grade---Departmental authorities were directed by the Supreme Court to consider case of appellant for promotion as per his entitlement in accordance with law and complete the process within specified period.

Dr. Mohyuddin Qazi, Advocate Supreme Court for Appellant.

Syed Sajjad Hussain Shah, A.A:-G. for Respondents.

Date of hearing: 25th October, 2005.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.--- This appeal by leave of the Court has been directed against the judgment dated 4-11-2002 passed by Service Tribunal whereby the appeal tiled by the appellant for the grievance of having not considered for promotion as per his entitlement, was dismissed. Leave was granted in this appeal vide order dated 20-2-2003 as under:‑

"Leave is granted to inter alia consider that in the absence of injunctions qua the petitioner, the Department; Promotion Committee was justified in not considering his case for the sought for promotion when the vacancy was already in existence."

2. The appellant, having superannuated, retired from service on 2-6-1999 whereas he was due for promotion much before his retirement A but was not considered for promotion on the ground/reason that a restrained order was passed by the Tribunal in another appeal.

3. The learned counsel for the appellant has contended that the Department by misconstruing the order passed by the Tribunal in Appeal No.2095 of 1998, withheld the promotion of the petitioner and deprived him from a legitimate right to hold the higher post and the consequential benefits. The Tribunal passed the following order in C.A. No.2095 of 1998: --‑

"No adverse action to the extent of the appellant shall be taken."

This order was passed to protect the right of appellant in the above referred appeal and respondents were not at all restrained not to consider the appellant in the present appeal for promotion in his own right.

4. The learned A.A.-G. without justifying the action of the Department, has contended that the appeal of the appellant before the Service Tribunal was time-barred. We are afraid the question of limitation was not taken before the Tribunal and the point, which was not raised before the Tribunal, cannot be allowed to be taken before this Court in appeal.

5. The entitlement of the appellant for promotion was not denied rather the process of promotion was withheld on the excuse of above referred order of Tribunal. We having considered the matter, have found that the appellant was wrongly prevented to get next promotion and discharge the higher responsibilities as a result of which he was not only deprived of the legitimate right of promotion but was also caused permanent loss of pensionary benefit of the higher grade. In view of the above, we direct that Departmental Authorities should proceed to consider the case of appellant for pro forma promotion as per his entitlement in accordance with law and complete the process within three months. This appeal is accordingly allowed with no order as to costs.

H.B.T./5-143/SC Appeal accepted.

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