2023 P L C (C.S.) Note 31
[Balochistan High Court]
Before Jamal Khan Mandokhail, CJ and Abdullah Baloch, J
MUHAMMAD NAEEM KHAN
Versus
GOVERNMENT OF BALOCHISTAN through Secretary and 3 others
C.P. No.148 of 2017, decided on 4th March, 2020.
Civil service---
----Promotion after retirement ---Scope ---Petitioner sought recovery of arrears of salary /
pensionary benefits from the date of his notional promotion and assailed the letter of Finance
Department whereby his claim was rejected ---Validity ---Governing Body of the concerned
Employer Authority in its meeting had decided that the petitioner 'to be promoted against the vacant post of Director Planning on his retirement and employed on contract basis'---Director General of the Authority in pursuance of the meeting had not only promoted the petitioner as Director Planning BPS -19, but had also up -graded the post of Director Planning from BPS -
19 to BPS -20--- Petitioner was not entitled for pensionary benefits of grade BPS -20 for the
reasons that no policy of promotion existed whereby person could be promoted after two
weeks of retirement; that there was a ban on up -gradation of posts and that the prescribed
procedure was not adopted by the Governing Body while granting promotion---Order passed by Director General of the Authority prima facie seemed to be illegal and without lawful authority---Finance Department had rightly rejected the claim of the petitioner ---
Constitutional petition was dismissed, in circumstances.
Mazhar Ilyas Nagi for Petitioner.
Shai Haq Baloch, Additional A.G. for Respondents.
Date of hearing: 10th December, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ----The instant Constitutional Petition filed under Article
199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), carries the following prayers:
(i) Declare that denial of respondents to give effect to Order dated 22 -11-2013, whereby
regular promotion up to the rank of B -20 was competently granted to Petitioner by the
competent Authority after retirement, is illegal and of no legal effect as well as arbitrary and ultra vires the Constitution and law;
(ii) Set aside the Finance Department's impugned letter dated
06-12-2016;
(iii) Direct the respondents to work out notionally the consequential financial benefits
arising out of aforesaid Order dated 22- 11-2013, re -fix his salary re -calculate
pensionary/retirement benefits on the basis of last pay/emoluments which the Petitioner ought have drawn as a corollary of promotion vide aforesaid Order;
(iv) Direct the respondents to pay the arrears of salary. from the date of notional promotion to B -20 as per aforesaid Order dated 22 -11-2013, pensionary/retirement
benefits/gratuity etc. as well as enhanced periodical pension every month, on the basis of re -computation asked for in preceding paragraph:
(v) Grant any other relief which may be deemed just and appropriate in the circumstances of the case; and
(vi) Award costs under section 35 and compensatory costs under 35- A, Cr.P.C., 1908, as
amended by the Civil Law Reforms Act, 1994 (PLD 1995 Central Statutes 1).
2. Facts of the case are that on 15th October, 1985 the petitioner was inducted in service
as Office Assistant (BPS -11) in Pasni Fisher Harbor Authority (PFHA). On 10th December,
1986 he was granted selection grade in BPS -14. Subsequently, he was promoted as
Stenographer (BPS -15) and thereafter as Private Secretary (BPS -16), while Selection Grade
in BPS -17 was granted to him on 1st June 1993. On the recommendations of Board of
Directors of PFHA, the petitioner was granted move -over from BPS -17 to BPS -18 w.e .f. 1st
December 1998. It is further averred in the petition that in the year 2001 the services of the petitioner were transferred from PFHA to Balochistan Coastal Development Authority ("BCDA") and thereafter his services were absorbed in BCDA as Accounts Officer BPS -18.
The petitioner has mainly averred in the petition that despite serving in BCDA on the post of Accounts Officer BPS -18 for a considerable long period of 13- years, he was not further
promoted, thus for such purposes he submitted an applicati on dated 20th July, 2011 in the
department. The said application was forwarded to Chief Secretary, who sought comments from BCDA, which were accordingly submitted in favour of the petitioner and it was recommended that the petitioner be promoted in BPS -19 as Director Planning w.e.f. 2003 i.e.
on completion of five years as BPS -18 officer or he may be granted BPS -19 with the date of
his Governing Body Meeting in which his name was proposed for promotion as Director Finance i.e. 20th February, 2004. Whereafte r, on 17th August, 2011 a summary was sent to
Chief Secretary with recommendations for promotion of the petitioner as Director Finance (BPS -19). On seeking views of Secretary Fisheries and Secretary S&GAD, they were of the
opinion that D.G. BCDA should follow the procedure by placing the matter before the Board's meeting. Accordingly, under the direction of Chief Secretary the matter was placed in the Board meeting, which was held on 30th August, 2013 under the Chairmanship of Chief Minister, who approved a genda No.9, pertaining to promotion of the petitioner as 1st
Director Planning (BPS -19) w.e.f. 1st December, 2003 and one -time up -gradation of the said
post to BPS -20 w.e.f. 1st December, 2008. It is further averred in the petition that the
petitioner was retired from his service on 12th August, 2013 and after his retirement he was promoted in BPS -19 as Director Planning and post was upgraded to BPS -20 w.e.f. 1st
December, 2011 till his retirement i.e. 12th August 2013, vide Notification dated 22nd
November, 2013. It means the petitioner was retired in BPS -20 and even after his retirement,
he was appointed in the department on contract basis for a period of six months and during
his tenure of contract basis he was paid the salary of BPS -20. It has also been averred in the
petition that though the petitioner was promoted with retrospective effect, but after his retirement neither the arrears of salaries nor the pensionary/retirement benefits were paid to
him and the Finance Department vide letter dated 6th December, 2016 has opined that no
such policy existed for promotion of an incumbent after his retirement. Under such
circumstances, the petitioner approached the learned Provincial Ombudsman by filing a complaint, but the same was dismissed on the ground of jurisdiction, vide decision dated 2nd August, 2016. Whereafter, the petitioner has filed the instant petition.
3. The respondents Nos.2 and 3 submitted their parawise comments, whereby they
objected the maintainability of the petition under Article 212 of the Constitution. Furthermore, the petitioner has not rendered his services in BPS -19 or above rather he was
retired in BPS -18, thus after his retirement from service and receiving all pensionary
benefits, he cannot claim the pensionary benefits of higher grades. Even otherwise, no such policy exists for the subject promotion after two weeks of retirement and up- gradation of the
said promotional post from the same date.
4. The learned counsel for the petitioner contended that the petitioner was initially
inducted in Fisheries Department and thereafter his services were transferred to BCDA as Accounts Officer in BPS -17 and thereafter the post was upgraded as BPS -18 and his services
were absorbed; that his case for promotion was placed before the Governing Body's Meeting and the Governing Body approved the promotion of the petitioner in BPS -19 and 20 in its
meeting dated 30th August, 2013; however, the petitioner was retired from his services on
superannuation of age on 12th August, 2013; that despite approval of Governing Body and subsequent notification dated 22nd November, 2013, arrears and pensionary benefits of the petitioner were withheld by the respondents in sheer violation of law; that the petitioner is entitled to receive his all back pensionary benefits and arrears of grade BPS -20.
5. The learned Additional Advocate General vehemently opposed the contentions so
raised by the learned counsel for the petitioner and contended that the promotion of petitioner was illegal and unlawful and against the promotion policy because the petitioner was retired on 12th August, 2013 in BPS -18 and he has received all the pensionary benefits
according to rules that the subsequent promotion by Governing Body on 30th August, 2013 after two weeks of his retirement was against the rules and regulations, as such, the petitioner is not entitled to claim for benefit of illegal promotion as he has not spent a single day in the promoted grades i.e. BPS -19 and 20; that after receiving full and final settlement the
petitioner is not entitled to claim benefits of upgraded posts for which he has not worked even for an hour; that petition is not maintainable on the ground that the petitioner initially filed complaint before the learned Provincial Ombudsman Balochistan and after the decision of the learned Provincial Ombudsman the petitioner has not approached the available remedy before the Hon'ble Governor Balochistan (appellate authority) in such view he is not an aggrieved person to approach this Court directly in constitutional jurisdiction.
6. Heard the learned counsel for the parties and perused the record, which reveals that
the petitioner was initially inducted in the services of PFHA as Stenotypist in BPS -12 in the
year 1985 and thereafter he was promoted as Private Secretary to MD PFHA in BPS -16 in
the year 1992 and later on promoted as Assistant Director BPS -17 on 23rd September, 2005
and thereafter he was engaged in Accounts section in BCDA in Fisheries Department
Balochistan at Karachi office as interim management, without any promotion, however, later
on his services were absorbed in BCDA as Accounts Officer BPS -17 on 7th November,
2006, however, after rendering eight months service, the petitioner has obtained benefit of
up-gradation in BPS -18 on the position of Accounts Officer, BCDA on 7th July, 2007 and
thereafter he has reached on superannuation of age. i.e. 60 years and retired from services on 12th August, 2013 and subsequently also appointed on contract basis on the same post for a period of six months.
7. The record further reflects that during the course, for the first time the petitioner filed
an application on 20th July, 2011 to the Chief Minister Balochistan/Chairman BCDA Quetta, the Minister BCDA and the Chief Secretary for grant of promotion from BPS -18 to BPS -19
and 20 in BCDA without any retrospective effect. The application was processed by the Director General (DG) BCDA through Chief Secretary and a summary was prepared for approval of Chief Minister, however, comments were called from the concerned Secretary Fisheries and he made certain observations, which arc reproduced herein below:
"i) Method of requirement to the post of Director Planning (B -19) BCDA has not been
mentioned in the summary; therefore, same needs to be added along with copy of service rules.
ii) Final seniority list of Accounts Officers (B -18) of BCDA may be issued.
iii) Request of applicant that he may be given promotion w.e.f. 2003 i.e. when he completed five years in B -18 is illogical. Promotions can only be considered against
permanent posts which are vacant. However, in this particular case it has not been mentioned that the post of Director Planning (B -19) has remained vacant since 2003.
iv) The applicant has requested for promotion to B -20 as well. However, availability of a
clear vacancy in B -20 and method of requirement to that post have not been
mentioned.
v) In order to dispose of such cases it is proposed that promotion cases in the shape of summaries should not be entertained. Instead, a proper case for the Governing Body should be prepared after ensuring that clear vacancies exit. ACRs are complete, and at least a panel of 2 officers has been made for consideration for promotion by the Governing Body.
View added as desired please."
And the same observations were also endorsed by the Secretary Services and General
Administration Department (S&GAD) Government of Balochistan and agreed by the Chief Secretary and Chief Minister. As the case of promotion of petitioner was not properly followed by the prescribed procedure for consideration and the summary was not competent; however, record further reflects that the matter of promotion of petitioner was placed before the Governing Body of BCDA in its 11th and 12th meeting at agenda item No.9 held on 30th
August, 2013 whereby at serial No.8 of the promotion list in front of his name it is written
that "to be promoted against the vacant post of Director Planning on his retirement and employed on contract basis". It is pertinent to mention here that despite of the fact knowing that petitioner was retired from service on 12th August, 2013, but not a single word with regard to his retirement or Performa promotion was discussed or mentioned in the minutes of
meeting nor any grade of the post of Director Planning is mentioned against which grade, the
petitioner should be promoted, but despite of such fact and without adopting proper
procedure vide order dated 22nd November, 2013 the DG, BCDA in pursuance of Governing Body Meeting dated 30th August, 2013 not only promoted the petitioner as Director Planning BPS-19, but also up- graded the post of Director Planning from BPS -19 to BPS -20 in one
time benefited the petitioner at the time of superannuation w.e.f. 1st December, 2006 in BPS -
19 and up- graded the post to BPS -20 from 1st December, 2011 till his retirement i.e. 12th
August, 2013. To avail the benefit of above promotion letter, the petitioner filed an application with BCDA, thus on receiving the application of petitioner the concerned department requested the Finance Department for advice/guidance, whether a retired officer is eligible for promotion with back dates and to draw pension/gratuity and other benefits or otherwise? The case has been scrutinized by the Finance Department in the light of relevant policies, the Finance Department advised the concerned department with regard to promotion policies and the same policies were also mentioned in the parawise comments of Finance Department, which are reproduced as under:
"The case has been scrutinized by Finance Department in the light of relevant policies reproduced as under: -
(i) As per promotion policy issued by S&GAD, the promotion of the incumbent(s) took place from the date, the respective Departmental Promotion Committee / Selection
Board recommends the case (s) of employee(s).
(ii) The Government of Balochistan, S&GAD issued policy with regard to proforma promotion on 22- 10-2011 under which the employees are granted proforma promotion
with certain terms and conditions from back date i.e. the date when juniors are promoted. Para -3 of said policy states that "The S&GAD will scrutinize the case in
the light of rules and give recommendations whether the civil servant is entitled for grant of proforma promotion from a specific date or otherwise and the Finance Department shall examine the case whether the civil servant is entitled for grant of proforma promotion from a specific date with financial or without financial benefits".
(iii) Finance Department issued policy for upgradation/resignation of posts vide circular date 23 -04-2007, whereby there is ban on upgradation of all kind of post. The cases of
upgradation of posts are governed strictly in accordance with the policy conditions and personal upgradation of employee has specifically been discouraged (Annex- IV).
The justifiable cases of upgradation are to be submitted to competent authority i.e. Hon'ble Chief Minister for relaxation of policy and ban.
After examination, Finance Department advised the Coastal Development and Fisheries Department vide letter dated 6- 12-2016 (Annex- V) as under: -
" ..no such policy exist in Finance Department for the subject promotion after two weeks of retirement and upgradation of the said promotional post from the same date.
It is further informed that violation of Rules is not permitted at any stage."
Therefore, Respondent No.2 (Finance Department) reiterates its above advice dated 6-
12-2016 conveyed to Costal Development and Fisheries Department Rest contents of
this para are related to Respondents Nos. 1 and 4."
8. On the other hand, parawise comments filed on behalf of BCDA wherein not only the
illegal promotion of the petitioner was questioned, but certain other illegalities and irregularities and concealling of facts were also alleged against the petitioner; that the petitioner has been retired as Accounts Officer BPS -18 on attaining the age of
superannuation i.e. 60 years, thus after retirement, the petitioner also taken his dues/benefits according to said grade, therefore, no question arises that the petitioner is again entitled for the benefits of grades BPS -19 and 20, on which he did not render service for a single day,
but the so- called promotions were made in a fraudulent manner on conceallment of facts on
the part of petitioner and concerned officers of the department for ill -gotten gains, for which
the department reserves right to thorough probe into the matter. It is further pointed out that in the month of July 2013, the petitioner himself drawn the salary against the post of Director Planning without having or issuing any order by the competent authority in favour of the petitioner, while on the other hand, the petitioner himself at the relevant time was performing his duties as Accounts Officer BPS -18.
9. Bare perusal of the promotion policies and view taken by the Finance Department and
BCDA, does not entitle the petitioner for pensionary benefits of grade BPS -20 on two counts,
firstly there is no policy of promotion exist after two weeks of retirement and up- gradation of
promotional post from the back dates as there was a ban on up- gradation of posts and
secondly the prescribed procedure for his promotion at a time of Governing Body Meeting was not adopted as suggested by the Secretary Fisheries, on the other hand, there are two
different working papers are available on record and both are contradictory to each other and there is an ambiguity in both working papers which does not support the claim of petitioner, it is further been observed that in a haphazard manner the Governing Body approved the agenda without keeping in mind the rules and polices even otherwise only the following words were mentioned in minutes of meeting of Governing Body in favour of petitioner i.e. "to be promoted against the vacant post of Director Planning on his retirement and employed on contract basis" such sentence is without comma (,) and full stop (.) neither any specific date for promotion is mentioned nor any grade or up- gradation of post from B -19 to 20 is
mentioned, thus the same cannot be termed as valid approval and on the basis whereof it cannot be ascertained that he is promoted in BPS -19 and the post is upgraded in BPS -20, thus
glaring ambiguities are found in the minutes of meeting, as such, the order dated 22nd November, 2013 passed by the DG BCDA prima facie seems to be illegal and without lawful authority and the DG BCDA was not competent to issue such order which is violative of rules and regulations.
For the reasons discussed hereinabove, it is appeared that the procedure so adopted by
the authorities for promotion of petitioner is neither transparent nor according to rules and policies of the government. Thus, in such view the Finance Department has rightly rejected the claim of petitioner, the petitioner is failed to make out a case for interference. The petition is dismissed with no order as to costs.
SA/113/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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