Muhammad Aftab Zaffar vs Gop (Secretary Prosecution) etc.

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

Writ Petition No.17377 of 2016

Muhammad Aftab Zafar. Vs. Secretary Prosecution, Public Prosecution Department, Govt.

of Punjab Lahore, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 04.04.2017. Mr. Muhammad Yafis Naveed Hashmi, Advocate for the petitioner.

Mr. Muhammad Aurangzaib Khan, learned A.A.G.

The petitioner has challenged his

deferment for promotion to the post of District Public Prosecutor (BS-19) by the Provincial Selection Board-I (PSB) in its meeting held on 24.03.2014 and

2.Brief facts of the case are that the petitioner joined service as Assistant District Attorney in BS-16 through Punjab Public Service Commission on 16.05.1996 and subsequently was promoted as Deputy District Attorney (BS-17) on regular basis vide Notification dated 03.03.2004. In the year 2006, the Government of the Punjab established separate Prosecution Department with the name of Punjab Public Prosecution Department, by virtue of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers), Act, 2006 (Act III of 2006) and the

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petitioner was inducted and transferred to the Punjab Criminal Service under Section 8 of the same Act on 02.03.2007. Vide order dated 07.11.2012 the petitioner was given the look after charge of the post of District Public Prosecutor, Vehari and the same charge remained with the petitioner for almost one year. On 24.03.2014 a meeting of PSB-I was held for promotion to the post of District Public Prosecutor (BS-19). The case of the petitioner was deferred and his juniors were promoted but the minutes of said meeting were not officially conveyed to the petitioner. Subsequently, on 29.09.2016 another meeting of PSB-I was conducted to consider the case of the petitioner for promotion to the post of District Public Prosecutor (BS-19) but his case was again deferred and his juniors were promoted. This time deferment of promotion of the petitioner was communicated vide letter dated 14.11.2016. From the letter dated 14.11.2016, it was observed that the promotion of the petitioner was deferred with observation that the Administrative Department may watch/monitor performance of the petitioner for one year and initiate a special report about the integrity/reputation of the petitioner for consideration of his case by the PSB-I.

3.Learned counsel for the petitioner argues that his Performance Evaluation Reports are in his

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favour and in the said reports, he has been given very good remarks in integrity and has been posed as honest and overall grading has been very good. Further in his pen picture, he has been stated to be good officer, efficient, hardworking, punctual, submissive and useful to retention in service in the Department. There are similar reports for all the relevant years.

4.The only allegation against the petitioner for deferment of his case for promotion to the post of District Public Prosecutor (BS-19) is that his integrity and reputation is questionable and that is to be considered by the PSB-I. Comments were called for by the Department. In the para-wise comments, Respondents have stated that PSB-I in its meeting was apprised that there were certain questions about the conduct of the officer and after the detailed deliberations; the Board was of the unanimous opinion that reputation of the officer remained questionable during his various postings creating doubts regarding his suitability for promotion to higher scale. Counsel for the petitioner has argued that all the Performance Evaluation Reports provide otherwise. The said reports have not been taken into consideration and only allegation against the petitioner as per comments filed by the petitioner is that he was awarded minor penalty of withholding of increment for the period of one year

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and the appeal against the said penalty filed by the petitioner was rejected by the Chief Secretary/ Appellate Authority.

5.There is no other allegation against the petitioner. It is the consistent view of the superior courts that a minor penalty cannot be a hurdle in the way of considering case of an employee for promotion.

Reliance is placed on the following cases. The Hon’ble Supreme Court of Pakistan in judgment reported as 1991 SCMR 1637 (Captain SARFARAZ AHMAD MUFTI versus GOVERNMENT OF THE PUNJAB and others) has observed that civil servant cannot be refused promotion merely because there is some minor penalty against him. The same principle was followed in the judgments passed by the Lahore High Court reported as 2009 PLC (C.S) 40 (MUHAMMAD AFZAL KHAN versus GOVERNMENT OF PUNJAB through Secretary, C&W Department and another) and 2013 C.L.R 983 (Mushtaq Ahmad Haleemi versus Government of Punjab, etc.).

Besides all the Performance Evaluation Reports filed by the petitioner support the claim of the petitioner and also Report dated 09th March, 2015 is also in his favour, wherein it has been mentioned that as per record overall conduct, integrity and reputation of the petitioner is satisfactory and the report was submitted to S&GAD for placing his case in PSB-I. There is no

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reason not to consider the case of the petitioner for promotion. The decision of the PSB to defer the case of the petitioner is neither supported by any logical reasoning nor is anything available on the record to justify the said decision.

6.In this view of the matter, as no ground for deferment of case from consideration is made out, the decision of the PSB in deferring the case of the petitioner is not sustainable in the eye of law.

Resultantly the case of the petitioner is directed to be placed before the PSB for reconsideration and passing appropriate orders.

7.With the above observation this

constitutional petition is disposed of.

(Muzamil Akhtar Shabir) Judge Zeeshan Khan