2003 P L C (C.S.

) 1496

[Lahore High Court]

Before Syed Jamshed Ali, J

Sh. MUHAMMAD RIAZ

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Communication

and Works and another

th
Writ. Petition No 11838 of 2002, heard on 11 July, 2003.
(a) Civil service------

----Promotion---Withholding of promotion on ground of anticipated

departmental inquiry after civil servant was recommended by Selection
Board and- was approved by Competent Authority---Validity---Withholding of
promotion was a penalty---Refusal to issue formal notifcation of promotion of
civil servant on such ground after he had been recommended and duly
approved by Competent Authority, was illegal and arbitrary.

Tahir Latif Sheikh v. Federation of Pakistan and another 2000 PLC (C.S.) 582
ref.

(b) Civil service

---

- Promotion---Pendency or contemplated initiation of disciplinary

proceedings---Right of civil servant to be considered for promotion not
barred---Duty pf Selection Board and Competent Authority to consider effect
of pending inquiry and then determine, whether civil servant should or should
not be promoted---Rationale behind such rule stated.

An ofcer against whom a departmental, inquiry has already been initiated

before consideration of his case for promotion, is not an outcast for purpose
of consideration of his case for promotion and there is no bar on his
promotion. The approach that a civil servant cannot or should not be
promoted during pendency of departmental inquiry is not to be accepted and
applied as an infexible rule. It will depend on the facts and circumstances of
each individual case. However, Selection Board and Competent Authority are
required to consider the effect of pending inquiry and then to determine,
whether civil servant should or should not be promoted. The rationale behind
is, frstly, that unless an allegation is proved, it remains an accusation only,
may give rise only to a suspicion about conduct of a civil servant and a
speculation that he might ultimately be punished. Secondly, if at all as a result
of departmental inquiry, a civil servant is found to be guilty, he may be
suitably punished which may include his dismissal. Administrative authorities
are free from observing the fetters and technicalities of judicial trial, because
in such-like matters they are not acting judicially, nevertheless their
decisions are required to be based on relevant considerations and material
and not on suspicion and speculation alone.

The State of Madhya Pradesh v. Bani Singh and another AIR 1990 SC 1308
and O&M Establishment Manual, Vol.II (Revised), pp. 122-123 rel.

(c) Administrative decision

---

- Administrative Authorities are free from observing the fetters and

technicalities of judicial trial, because in, such-like matters they are not acting
judicially, nevertheless their decisions are required to be based on relevant
considerations and material and not on suspicion and speculation alone.

(d) Punjab Civil Servants Act (VIII of 1974)

---

----Ss. 8. & 23---Instructions contained in Government of the Punjab,

Services and General Administration Department Letter No'.SOIV (S&GAD) -
I-75/67 (Policy), dated 18-1-1968 [O&M Establishment Manual, Vol.II
(Revised)], pp. 122-123---'Validity---Such instructions would be followed for
having the force of rules by virtue of S.23 of Punjab Civil Servants Act, 1974
and not being inconsistent with provisions thereof.

O&M Establishment Manual. Vol.II (Revised), pp. 122-123 ref.

(e) Punjab Civil Servants Act (VIII of 1974)

---

----S. 8---Punjab Civil Servants (Efciency and Discipline) Rules, 1975,

R.4---Constitution of Pakistan (1973), Arts. 199 & 212---Writ of
mandamus---Withholding of promotion---Competent Authority recalled its
approval to recommendation of Selection Board for promotion of petitioner on
the basis of major and minor penalties imposed upon him, which had already
been set aside by Service Tribunal and afrmed by the Supreme
Court---Validity---Grievance of petitioner was not about breach of terms and
conditions of his service---Jurisdiction of Service Tribunal extended to
examine orders passed by Departmental Authorities in relation to terms and
conditions of service of civil servants---Service Tribunal did not have any
jurisdiction to issue a direction in the nature of mandamus to Departmental
Authorities compelling them to act in accordance with favourable orders
already passed by them---Promotion of petitioner had been withheld in
contemplation of initiation of an inquiry in respect of certain allegations
thereby doubting his ftness---Petitioner had been superseded in the meeting
of Selection Board held during pendency of Constitutional petition on basis of
irrelevant considerations as orders imposing major and minor penalties had
already been set aside---Minor penalty of "censure" had been imposed upon
petitioner after recommendation of Selection Board and its approval by.
Competent Authority---Minor penalty could not be considered as a
disqualifying factor---Petitioner in matter of promotion had not been dealt with
in accordance with rules and in a just and fair manner---Inaction of authority
not to issue a formal notifcation and, thereafter super session of petitioner
was without lawful authority---High Court directed Authority to place
petitioner's case before Selection Board in its next meeting for his
consideration for promotion
from due date---[Ch. Yar Muhammad Duriana v. Government of the Punjab
and another 1992 PLC (C.S.) 95 overruled].
Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others. 1991
SCMR 1637 and O&M Establishment Manual, Vol.-II (Revised), 1974 Edin.,
pp. 123-124 rel.

Ch. Yar Muhammad Duriana v. Government of the Punjab and another 1992
PLC (C.S.) 95 overruled.

(f) Constitution of Pakistan (1973)

---

----Arts. 199 & 122---Punjab Service Tribunals Act (IX of 1974), S.4--
Constitutional jurisdiction of High Court---Scope---Unless jurisdiction of
Service Tribunal extends to a matter, the bar of jurisdiction contemplated by
Art. 212 of the Constitution would not be attracted.

Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 27 others
PLD 1981 SC 137 and Mateen-ul-Hassan Khan and others v. The Secretary,
Finance Department, Government of Sindh, Karachi and-others 1985 PLC
(P.S.) 681 rel.

(g) Jurisdiction --
---

------Ouster of jurisdiction of superior Courts---Not to be lightly inferred---In

case of doubt, same be resolved in favour of jurisdiction rather than its
ouster.

Mateen-ul-Hassan Khan and others v. The Secretary, Finance Department,

Government of Sindh, Karachi and others 1985 PLC (C.S.) 681 fol.

(h) Punjab Service Tribunals Act (IX of 1974)

---

----S. 4(b), proviso---Question of "ftness" as distinguished from "eligibility" for

promotion---Specifcally excluded from jurisdiction of Service Tribunal by
virtue of proviso to S.4(2) of Punjab Service Tribunals Act, 1974.

(i) Punjab Service Tribunals Act (IX of 1974) --

---

----SA(1)---Denial of promotion---No appeal would lie before Service Tribunal

against deferment or supersession.

M.A. Rafque v. Managing Director (Power), WAPDA and 7 others 1990

SCMR 927; Zafar Iqbal v. M.G.O. Branch, GHQ Rawalpindi and 3 others
1995 SCMR 881 and Government of Punjab through Secretary, Health
Department, Civil Secretariat, Lahore and another v. Dr. Aman-ul- Haq, M.S.
District Headquarter, Gujranwala 2000 PSC 599 rel.

(j) Punjab Civil Servants Act (VIII of 1974) --

---

----S.8---Promotion---Not an illusory right---Civil servant though riot having a

right to be promoted was entitled to be considered for promotion by virtue of
S.8 of Punjab Civil Servants Act, 1974---Right of promotion would be
rendered as perfunctory ritual, if Competent Authority acted in
the matter contrary to the rules, arbitrarily or by taking into consideration
irrelevant considerations.

Sarfraz Ahmad Hiraja v. Water and Power Development Authority and others
1999 SCMR 2828; Abdul Wahab Khan v. Government of the Punjab and 3
others PLD 1989 SC 508; Pakistan Telecommunication Corporation and
another v. Riaz Ahmad and 6 others PLC 1996 SC 222 and Director of
Education v: Government of the Punjab and others 1997 PLC (C.S.) 216 ref.

(k) Punjab Service Tribunals Act (IX of 1974) --

---

----S. 4---Constitution of Pakistan (1973), Arts. 199 &c, 212---Constitutional

jurisdiction of High Court---Scope---High Court would refrain from substituting
opinion of Departmental Authority with its own opinion---Where Departmental
Authority acted in matter contrary to the rules, arbitrarily or in an unjust, unfair
and oppressive manner or took into consideration irrelevant considerations,
then corrective judicial process could always be applied by High Court while
exercising Constitutional jurisdiction in such cases in which jurisdiction of
Service Tribunals stood ousted.

M.R Khalid v. Government of the Punjab 1994 PLC (C.S.) 138 ref.

(l) Punjab Civil Servants Act (VIII of 1974) --

---

----S. 8---Punjab Civil Servants (Efciency and Discipline) Rules, 1975, R.4(1)
(a)---Promotion---Minor penalty by itself could not be considered as
a disqualifying factor---[Ch. Yar Muhammad Duriana v. Government of the
Punjab and another 1992 PLC (C.S.) 95 overruled].

Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991
SCMR 1637 and O&M Establishment Manual, Vol.-II (Revised), 1974 Edn.
pp. 123-124 rel.

Ch. Yar Muhammad Duriana v. Government of the Punjab and another 1992
PLC (C.S.) 95 overruled.

(m) Punjab Civil Servants Act (VIII of 1974)

---

----S.8---Punjab Civil Servants (Efciency and Discipline) Rules, 1975, R.4(1)

(a)---Promotion---Minor penalty---Withholding of promotion on basis of
penalty of "censure" would attract rule of double jeopardy---Competent
Authority could take into consideration minor ,penalty, while forming opinion
as to suitability of civil servant for promotion---Principles.

Withholding of promotion of civil servant only on the basis of a solitary penalty

of censure attracts the rule of double jeopardy, because civil servant, who
commits an actionable wrong, cannot again be punished for the same wrong
for which he has already been punished. If a penalty of "censure" is coupled
with other relevant considerations and competent authority, while forming
opinion as to suitability of civil servant, also takes into consideration a minor
penalty, the decision may not be bad---[Ch. Yar Muhammad Duriana v.
Government of the Punjab and another 1992 PLC (C.S.) 95 overruled].
Captain Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991
SCMR 1637 and O&M Establishment Manual, Vol.II (Revised), 1974 Edn.,
pp. 123-124 rel.

Ch. Yar Muhammad Duriana v. Government of the Punjab and another 1992
PLC (C. S.) 95 overruled.

Rana Farman Ali Sabir for Petitioner.

Raja Abdul Rehman, A.A.-G. for Respondents

th
Date of hearing: 11 July, 2003.
JUDGMENT

The petitioner is serving in the Communication and Works Department as

Executive Engineer (B.S. 18). He is due to retire, on 4-8-2003 on reaching
the, age of superannuation. Alongwith others he was recommended for
promotion by the Provincial Selection Board as Superintending Engineer
(BS-19) in the meeting held on 26-3-2001. The said recommendation was
approved by the Governor of the Punjab i.e. the competent authority on
7-4-2001. These facts have not been disputed in the parawise comments
submitted by the Department. However, a formal notifcation of the ofcers
recommended for promotion by the Provincial Selection Board in the meeting
dated 26-3-2001 was issued on 19-4-2001 but the name of the petitioner was
not there. He made a representation which did not fnd favour with the
departmental authorities. According to the communication dated 22-3-2003
addressed to the learned Additional Advocate-General Punjab, the case of
the petitioner was considered by the Provincial Selection Board in the
meeting held on 11-1-2003 and he was superseded for promotion as
Superintending Engineer (BS-19) in view of major penalty of recovery of
Rs.38,000.00 imposed upon him. Through this petition, the petitioner has
prayed for a direction to the respondents for issuing notifcation of promotion
of the petitioner.

2. The learned counsel for the petitioner submits that vide order dated
13-11-2001 major penalty of recovery of an amount of Rs.38,000.00 and
minor penalty of withholding of increment for a period of two years were
imposed upon the petitioner against which he agitated the matter before the
Punjab Service Tribunal in Appeal No. 1418 of 2002 which was allowed vide
judgment dated 3-10-2002. The Department fled a petition for leave to appeal
before the Hon'ble Supreme Court which was dismissed on 31-3-2003. It is
contended that since the only stigma, on the basis of which promotion of the
petitioner was withheld, stood removed, a formal notifcation was required to
be issued promoting the petitioner to BS-19 as Superintending Engineer so
as to give effect to the recommendation of the Provincial Selection Board and
its approval by the competent authority. The learned counsel also brought to
my notice that apart from the penalties imposed upon the petitioner vide order
dated 13-11-2001 another major penalty of the recovery of Rs.19407.00 was
imposed upon the petitioner vide order dated 31-10-2001. However, on his
departmental appeal, the said penalty was converted into
"censure". He maintains that one isolated penalty of "censure" was too heavy
a toll to be extracted from the petitioner as withholding of promotion is itself a
major penalty and rule of double jeopardy is attracted. Reliance is being
placed on Captain Sarfraz Ahmed Mufti v. Government of the Punjab and an
others (1991 SCMR 1637).

3. On the other hand the learned Assistant Advocate-General submits that

against the order dated 31-3-2002 of the Hon'ble Supreme Court, refusing
leave, the Department is taking steps to fle review petition. It is further
submitted that the writ petition is hit by the bar of Article 212 of the
Constitution and no civil servant has a vested right to be promoted. He placed
reliance on Sarfraz Ahmad Hiraja v. Water and Power Development Authority
and others (1999 SCMR 2828), Abdul Wahab Khan v. Government of the
Punjab and 3 others (PLD 1989 SC 508), Pakistan Telecommunication
Corporation and another v. Riaz Ahmad and 6 others (PLD 1996 SC 222)
and Director of Education v. Government of the Punjab and others 1997 PLC
(C.S.) 216).

4. The submissions made by the learned counsel for the patties have been
considered. The recommendation of the Provincial Selection Board and the
order passed by the competent authority were not implemented only in
anticipation of an inquiry and in one case the penalty was imposed on
31-10-2001 and in the other on 13-11-2001. As- far as the frst is concerned,
it was converted into "censure". It may be noted that vide order dated
13-11-2001 of the departmental authority not only the penalty of recovery of
the amount of Rs.38,000 was imposed upon the petitioner but two increments
were also ordered to be withheld. Both these penalties were set aside but the
learned Punjab Service Tribunal and the judgment was afrmed by the Hon'ble
Supreme Court. The letter dated 22-3-2003 does not indicate whether the
order passed by the competent authority on the recommendations of the
Provincial Selection Board in the meeting held on 26-3-2001, to the extent of
the petitioner, was recalled. The decision, to supersede the petitioner, in fact,
amounts to undoing and over-ruling the order dated 7-4-2001 passed by the
competent authority. This could not have been done unless the order dated
7-4-2001 was recalled.

5. I may add that withholding of promotion is a penalty and therefore refusal

to issue a formal notifcation of the promotion of the petitioner, after he had
been recommended by the Provincial Selection Board which was duly
approved by the competent authority, was illegal and arbitrary in as much as
that it was withheld on the ground of an anticipated departmental inquiry. In
Tahir Latif Sheikh v. Federation of Pakistan and another (2000 PLC (C.S.)
582) an ofcer of the Income Tax Group was recommended for promotion by
the Central Selection Board which was approved by the competent authority
i.e. Prime Minister but a formal notifcation was not issued on the ground that
after the approval of the Prime Minister a complaint of corruption had been
received against him. It was observed that on the basis of a complaint; which
remains an unsubstantiated allegation only, unless found to be correct,
promotion of the petitioner in the said case could not be withheld.

6. The question whether promotion of an ofcer, who is otherwise eligible, can

be withheld only on the ground of contemplated initiation of disciplinary
proceedings, was considered by the Supreme Court of India
in The State of Madhya Pradesh v. Bani Singh and another (AIR 1990 SC
1308) and the following observations were made;

"Normally, pendency or contemplated initiation of, disciplinary

proceedings against a candidate must be considered to have
absolutely no impact 'upon, to his' right to be considered. If the
department enquiry had reached the stage of framing of charges after
a prima facie case has been made out, the normal procedure followed
as mentioned by the Tribunal was 'sealed cover' procedure but if the
disciplinary proceedings had not reached that stage of framing of the
charge after prima facie case is established the consideration for the
promotion to a higher or selection grade cannot be withheld merely on
the ground of pendency of such disciplinary proceedings.".

7. It may also be observed that even an ofcer against whom a departmental

inquiry has already been initiated, before consideration of his case for
promotion, is not an outcast for the purpose of consideration of his case-for
promotion and there is no bar on his promotion. The approach that a civil
servant cannot or should not be promoted during pendency of a departmental
inquiry is not to be-accepted and applied as an infexible rule. It will depend
on. the facts arid circumstances of each individual case. However, the
Selection Board and the competent authority are required to consider the
effect of the pending inquiry and then to determine whether a civil servant
should or should not be promoted. The rationale behind is, frstly, that unless
an allegation is proved it remains an accusation only, may give rise only to a
suspicion about the conduct of a civil servant and a speculation that he might
ultimately be punished. Secondly; if at all as a result of the departmental
inquiry a civil servant is found to be guilty he may be suitably punished which
may include his dismissal. It may be observed that although I the
administrative authorities are free from observing the fetters, and
technicalities of judicial trial because in such-like matters they are not acting
judicially, nevertheless their decisions are required to be based on relevant
considerations and material and not on suspicion and speculation alone. This
t appears to be the reason that vide Government of the Punjab S&GA
Department letter No.SO.IV(S&GAD)-1-75/67 (Policy), dated 18-1-1968
(O&M establishment Manual Volume-II (Revised) pages 122-123) it was
directed as follows:--

"The question regarding promotion of an ofcer to a higher post during

the pendency and investigation for alleged corruption was considered
in the past and it was decided that there was no bar to an ofcer being
considered for promotion to a higher post during the pendency of
investigation subject to certain restrictions laid down in this
Departmental Circular Letter No.SO XII (S&GAD) 5-16/62, the 7th
September, 1962. This question has been further examined and it has
been decided that the instructions contained in the above circular letter
should also apply mutatis mutandis to all types of disciplinary cases. In
the case of departmental proceedings a copy each of the charge-sheet
and the statement of allegations should be put before the Selection
Board, Public Service Commission or any other authority competent to
make selection or promotion as the case may be.
 2. If a Government servant who is not promoted on account of enquiry
against him but is subsequently exonerated, it should be ensured that
the holding of inquiry should trot work against him. The question
regarding possibility of his proforma promotion should be examined by
his appointing authority, and he should be allowed his original
seniority. It is, necessary to set out in the promotion order of junior
ofcer is temporary and the senior ofcer has been ignored on account
of serious charges against him in a departmental inquiry:"

These instructions, not being inconsistent with the provisions of the Civil
Servant. Act 1974, have the force of rules by virtue of section 23 of the
Punjab Civil Servants Act, 1974 and are, therefore, required to be followed.

8. The objection of the learned A.A.-G. based on Article 212 of the

Constitution and the judgments cited by him in support thereof have been
duly considered. The petitioner is not before this Court to complain of breach
of, any terms and conditions of his service or any infringement thereof. The
relief he seeks is a direction in the nature of a writ of mandamus for, issuing a
formal notifcation for his promotion. The Punjab Service Tribunal being
Tribunal of limited jurisdiction cannot competently entertain and adjudicate
upon all legitimate grievances of a civil servant; its jurisdiction extends to
examine the orders passed by the departmental authorities in relation to the
terms and conditions of the service of the civil servants but does not have any
such jurisdiction to issue a direction in the nature of mandamus to the
departmental authorities compelling them to act in accordance with
favourable orders already passed by the departmental .authorities. Therefore,
unless the jurisdiction of the Punjab Service Tribunal extends to a matter the
bar of jurisdiction contemplated by Article 212 of the Constitution is not
attracted. This was the view taken by me in the case of Tahir Latif Sheikh
supra, which in turn, was based on the judgment of the Hon'ble Supreme
Court in Fazal Elahi Ejaz and 22 others v. Government of the Punjab and

27 others (PLD 1981 SC 137) and judgment of the learned Karachi High
Court in Mateen-ul-hassan Khan and others v. The Secretary, Finance
Department Government of Sindh, Karachi and others (1985 PLC (C.S.)
681. In the case of Tahir Latif sheikh supra it was also observed that ouster
of jurisdiction of the superior courts is not to be lightly inferred and in case of
doubt it has to be resolved in favour of jurisdiction rather than its ouster.
Although, in this case I have no doubt in my mind that the matter was beyond
the jurisdiction of the learned Punjab Service Tribunal.

9. The other aspect of the matter is that the promotion of the petitioner was
withheld in contemplation of initiation of an inquiry in respect of certain
allegations thereby doubting his ftness and ultimately, he was superseded in
the meeting of the Provincial Selection Boatel held on 11-1-2003 which was,
based on a consideration which was wholly irrelevant as the order imposing
major penalty of recovery and minor penalty of stoppage of increments has
already been set aside by the learned Punjab Service Tribunal and their
judgment was afrmed by the Hon'ble Supreme Court. The question of
"ftness", as distinguished from "eligibility" for promotion, has specifcally been
excluded from the jurisdiction of the Punjab Service Tribunal by virtue of
proviso (b) to
section 4 of the Punjab Service Tribunals Act, 1974 although the letter of law
is explicit yet the effect of the aforesaid proviso came under consideration in
a number of case before the superior Courts and it was held that against
deferment or supersession no appeal lies before the Punjab Service Tribunal.
Reference may be made to M.A. Rafque v. Managing Director (Power),
WAPDA and 7 others (1990 SCMR 927), Zafar Iqbal v. M.G.O.M.G.O.
Branch, GHQ Rawalpindi and 3 others (1995 SCMR
881) and Government of Punjab through Secretary Health Department, Civil
Secretariat, Lahore and another v. Dr. Aman-ul-Haq, M.S. District
Headquarter, Gujranwala (2000 PSC 599).

10. The judgments cited by the learned A.A.-G. do not cover the controversy
raised in this petition. The case of Sarfraz Ahmad Hiraja (supra) involved
transfer of a civil servant. In the case of Abdul Wahab Khan (supra) a
pending disciplinary inquiry was challenged. In the case of Pakistan
Telecommunication Corporation supra the petitioners were the employees of
the Pakistan Telecommunication Corporation. Their grievance was direct
appointment to the, post of Assistant Divisional Engineer on the ground that
they were in the promotion zone and the posts reserved for promotion quota
were required to be flled in frst. An objection based on Article 212 of the
Constitution was raised in the said case which was repelled on the ground
that, by virtue of section 19 of the Pakistan Telecommunication Corporation
Ordinance (XVI) of 1990, the petitioners had become employees of the
Corporation and were not civil servants. On examination of the relevant
provisions of law the Hon'ble Supreme Court found that the petitioners in the
said case were civil servants and bar of jurisdiction contemplated by Article
212 of the Constitution was attracted. In the case of Director of Education
supra recommendation of the Provincial Selection Board for promotion to
BS-20 ws assailed on the ground of wrong seniority list. It did not involve any
question of ftness for promotion.

11. As far as the contention of the learned counsel that promotion is not a
right of a civil servant is concerned, it has no merit because in this case, the
petitioner had been recommended for promotion which was duly approved by
the competent authority and a formal notifcation had to follow as the matter of
course unless for a valid reason, the competent authority had recalled its
approval to the recommendation of the Provincial Selection Board. A civil
servant may not have a right to be promoted but by virtue of section 8 of the
Punjab Civil Servants Act, he is entitled to be considered for promotion. This
is not an illusory right and will be rendered as perfunctory ritual if the
competent authority acts in the matter contrary to the rules, arbitrarily or by
taking into consideration irrelevant considerations. I am quite mindful that
while exercising Constitutional jurisdiction, this Court refrains from
substituting the opinion of the departmental authority with its own opinion but
when the departmental authority acts in the matter contrary to the rules,
arbitrarily or in an unjust unfair and oppressive manner, or takes into
consideration irrelevant considerations the corrective judicial process r could
always be applied by this Court while exercising Constitutional jurisdiction in
such cases in which the jurisdiction of the Service Tribunal stands ousted.
Reference may be made to M.R. Khalid v. Government of the Punjab (1994
PLC (C.S.) 138). In the said case pro forma promotion was declined to the
petitioner on the basis of the adverse reports, most of which could not have
been lawfully taken into
consideration. This Court interfered. In the present case a formal notifcation
of petitioner's promotion was withheld initially in anticipation of an inquiry and
then he was superseded on the basis of the penalties of recovery and
withholding of increments which had already been set aside. None of the
aforesaid considerations was at all relevant thereby rendering the impugned
decision as arbitrary.

12. What remains to the discredit of the petitioner is the minor penalty of
'censure'. This too ws imposed after the recommendation of the Provincial
Selection Board made on 26-3-2001 and its approval by the competent
authority on 7-4-2001. And, according to the letter dated 22-3-2003 it was not
a reason to supersede the petitioner. 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 afrmed by the Hon'able Supreme
Court in the case of Captain Sarfraz Ahmad Mufti supra (decided on
14-4-1991). It may be clarifed 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 (Efciency 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)

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. It may
be clarifed that if a penalty of 'censure' is coupled with other relevant
considerations and the competent authority, while forming opinion as to the
suitability of a civil servant, also takes into consideration a minor penalty the
decision may not be bad.

13. For what has been stated above, I am of the considered view that in the
matter of promotion the petitioner was not dealt with in accordance with the
rules and in a just and fair manner. Therefore, inaction of the respondents not
to issue a formal notifcation and thereafter the supersession of the petitioner
are declared as without lawful authority.

14. The question that attracted my attention was as to the relief to be granted
to the petitioner in the circumstances of the case because since the fling of
the writ petition, and its disposal today, the decision dated 11-1-2003,
superseding the petitioner intervenes. The Departmental Representative
informed me that the case of the petitioner for promotion
to BS-19 was placed before the Provincial Selection Board in the meeting
held on 9-7-2003 but the minutes thereof are still awaited. It is, accordingly,
directed that unless the Selection Board recommends the petitioner for
promotion to BS-19 his case for promotion to the post of Superintending
Engineer (BS-19) shall be placed before the Provincial Selection Board in the
next meeting for his consideration for promotion from the due date and in the
light of the observations made in this judgment. No order as to costs.

S.A.K./M-2046/L Order accordingly.