PLJ 2022 Quetta (Note) 29
Present: JAMAL KHAN MANDOKHAIL , CJ. AND ABDULLAH BALOCH , J.
MUHAMMAD NAEEM KHAN--Petitioner
versus
GOVERNMENT OF BALOCHISTAN through CD & FD and others --Respondents
C.P. No. 148 of 2017, decided on 4.3.2020.
Constitution of Pakistan, 1973--
----Art. 199 --Appointment as steno typist --Promotion as private secretary --Retirement from service after
superannuation--Appointment on contract basis --Receiving of pensionary benefits --Promotion policy --
Entitlement for arr ears--Concealment of facts --Procedure adopted for promotion was neither transparent nor
according to rules and policies of Government --There is no policy of promotion exist after two weeks of
retirement and up -gradation of promotional post from back dates as there was a ban on up -gradation of posts --
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 which does not support claim of petitioner --Procedure so adopted by authorities
for promotion of petitioner is neither transparent nor according to rules and policies of government --Finance
Department has rightly rejected claim of petitioner, petitioner is failed to make out a case for interference--Petition dismissed. [Para 9] A, B & C
Mr. Mazhar Ilyas Nagi , Advocate for Petitioner.
Mr. Shai Haq Baloch, Additional A.G for Respondents.
Date of hearing: 10.12.2019.
J
UDGMENT
Abdullah Baloch, J. --The instant Constitutional Petition filed under Article 199 of the Constitutio n 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 res pondents 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 -computat ion 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 Assis tant
(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 pet itioner 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 pos t
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 application dated 20th July, 2011 in the department. The said application was forwarded to Chief Secretary, who sou ght 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 B PS-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. Whereafter,
on 17th August, 2011 a summary was sent to Chief Secretary with recommendations for promotion of the pe titioner
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 agenda No. 9, pertaining to promotion of the petitioner as 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 reti rement 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 No. 2 & 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 ret ired 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 & 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 22” November,
2013, arrears and pensionary benefits of the pet itioner 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 ra ised 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&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 maint ainable 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 ther eafter 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, how ever, after rendering eight months
service, the petitioner has obtained benefit of up- gradation in BPS -18 on the position of Accounts Officer, BCDA on
7l July, 2007 and thereafter he has reached on superannuation of age i.e. 60 years and retired from servi ces 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&20 in BCDA without any retrospective effect. The
application was processed by the Director General (DG) BCDA through Chi ef 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 are 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 & General Administration Department
(S&GAD) Government of Balochistan and agr eed 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 & 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 pos t 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 be nefited 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 fil ed 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 &
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 23.4.2007,
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 & 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 N o. 2 (Finance Department) reiterates its above advice dated 6- 12-2016 conveyed
to Costal Development & Fisheries Department Rest contents of this para are related to Respondents No. 1
& 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 concealing of facts were also
alleged against the petitioner; that the petitioner has been retired as Accounts Officer BPS -18 on at taining 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&20, on which he
did not render service for a single day, but the so- called promotions were made in a fraudulent manner on
concealment of facts on the part of petitioner and concerned officers of the department for ill -gotten gains, for which
the department reserves rig ht 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 pe titioner, 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 petitione r 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 presc ribed 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 th ere 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 f ollowing 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 st op (.) 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 compe tent 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 polic ies 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 cost.
(Y.A.) Petition dismissedThis 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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