Karam Elahi Vs Medical Superintendent Lahore General Hospital etc

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No.37551 of 2025

Karam Elahi

Versus

Medical Superintendent, Lahore General Hospital & others

JUDGMENT

Date of hearing: 30.01.2026.

Petitioner by: M/s. Mian Asif Mumtaz and Khurram Shehzad Malik, Advocates.

Respondents by: Mr. Muhammad Saad Bin Ghazi, Assistant Advocate General.

M/s. Barrister Muhammad Arsalan Nazar and Shahzad Rehmat, Advocates.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through the instant constitutional petition, the petitioner has challenged the legality and propriety of the impugned order dated 27.05.2025, passed by respondent No.2 / Special Secretary (Operations), Specialized Healthcare & Medical Education Department, Punjab, whereby his application for issuance of retirement notification in BPS-16 as Chief Dental Technician, along with consequential service benefits including pension and gratuity, was denied.

2.Learned counsel for petitioner contends that having served as Chief Dental Technician in BPS-16 from 2018 to 2024, the sudden denial of his retirement notification and associated benefits under the 4-Tier Service Structure at the verge of superannuation is arbitrary, whimsical, and mala fide. He further submits that petitioner’s application for retirement notification, supported by a “No Audit Para/No Inquiry” certificate, was not decided through a speaking and reasoned order as required under Section 24-A of the General Clauses Act, 1897, thereby violating his legitimate

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expectation and vested rights. He maintains that the petitioner has been subjected to discriminatory treatment, as similarly placed colleagues, namely Tahir Javed and M. Riaz, were allowed to retire in BPS-16 as Chief Dental Technicians, whereas the petitioner, despite serving in the same cadre and fulfilling all eligibility criteria, was denied retirement notification in BPS-16, which is violative of the the principles of equality guaranteed under Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. He adds that having lawfully performed duties in the said grade, the petitioner acquired vested rights therein, which could not be withdrawn after taking legal effect, however, the impugned order is contrary to law. Learned counsel has referred to the judgment dated 15.01.2026, passed in CPLA No.5401 of 2024 titled Fakhar Majeed v. Secretary Government of Punjab Irrigation Department, Lahore and others, which recognizes that administrative delay, inaction, or procedural irregularities cannot prejudice the rights of an eligible civil servant.

3.Conversely, learned Law Officer duly assisted by learned Legal Advisor for respondent No.1 defends the impugned order by contending that the petitioner’s up-gradation to BPS-16 was not admissible under the 4-Tier Service Structure and the Allied Health Professionals (Service) Rules, 2012, as it skipped tiers and was executed without Finance Department’s concurrence, contrary to prescribed seniority-cum-fitness criteria and post ratios. He adds that the petitioner was provided a personal hearing on 20.05.2025, and his request was rejected being not covered under the rules/policy, while directing the Medical Superintendent to review his record and issue retirement notification in compliance with applicable procedures.

4.Arguments heard. Available record perused.

5.Record shows that the petitioner was initially appointed as Chowkidar (BS-01) in July 1985 and subsequently promoted as Dental Attendant (BS-02), Dental Assistant (BS-05), Dental

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Technician (BS-09), and Senior Technician (BS-12) under the 4- Tier Service Structure of Allied Health Professionals. Further up- gradations and re-designations ultimately placed the petitioner in BPS-16 as Chief Dental Technician, wherein he performed his duties until the date of superannuation i.e. 31.12.2024. The petitioner’s application for retirement notification in BPS-16 was submitted to the department along with a “No Audit Para/No Inquiry” certificate.

6.It is a settled principle of service jurisprudence that where an employee lawfully performs the duties of a higher grade pursuant to a valid notification and continues to hold the same without its withdrawal during service, he acquires vested rights attached to that grade. Such rights cannot be arbitrarily curtailed, particularly at the verge of retirement, as it directly affects pensionary and other retiral benefits. Reliance has been placed upon order dated 15.04.2025 passed in W.P. No.13874 of 2024, wherein, while deciding an identical controversy, it was held that a department cannot be permitted to retire a public servant on a grade lower than that lawfully held by him during service. In the said judgment, reference was also made to W.P. No.10678/2024 titled “Arshad Ali v. Chief Executive Officer & others”, decided on 05.09.2024, wherein it was categorically observed that once a promotion is granted and not withdrawn in accordance with law, the department cannot retrospectively deprive the employee of the higher grade at the time of retirement. The operative part whereof is reproduced hereunder:-

“It is the case of the petitioner that he was granted BPS- 16 through notification dated 28.03.2014 whereafter the petitioner continued to perform his duties in BPS-16, however, he has been retired through notification dated 04.10.2024 in BPS-12, which is not permissible and on identical question of law, a constitutional petition bearing W.P. No.10678 / 2024 titled “Arshad Ali v. Chief Executive Officer & others” through order dated 05.09.2024 has been allowed while holding that the department cannot be permitted to retire a public servant on a grade lower than the one to which he was duly promoted and not withdrawn during the tenure of his service.

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2.Learned Law Officer, who appeared in the case of Arsha Ali supra, has entered appearance on Court’s call and after perusing the record could not refute the contention of learned counsel for the petitioner. Therefore, by way of following the rule of consistency, this petition is also allowed and the impugned order is set aside. The petitioner shall be deemed to have retired in BPS-16 and his pensionary benefits shall be calculated accordingly.”

When confronted with the aforesaid precedent, learned counsel for the respondents could not dispute that the said judgment was passed in respect of similarly placed employees and that the same still holds the field. No distinguishing feature has been pointed out which may warrant departure from the rule of consistency.

7.The principle of locus poenitentiae bars the authority from retracting a decision which has taken legal effect, unless it is shown to have been obtained through fraud, misrepresentation, or illegality. The Hon’ble Supreme Court has consistently held that an individual who has acted upon a lawful order, performed duties, or relied upon an entitlement, cannot be prejudiced for the action or inaction of the administrative authority. Likewise, the principles of promissory estoppel prevent government functionaries from acting detrimentally to the rights of a person who, in good faith, has relied upon a clear and unequivocal promise or benefit, which was intended to create legal relations. Further, Section 24-A of the General Clauses Act, 1897 requires that administrative decisions affecting vested rights or legitimate expectations must be supported by reasons. The impugned order merely rejects the petitioner’s claim as meritless and directs review of records, without addressing prior service, up-gradations, or comparative treatment of other officers, amounting to a violation of natural justice. In the present case, the petitioner lawfully performed duties in BPS-16 for several years, and was similarly placed as colleagues, namely Tahir Javed and M. Riaz, who were allowed to retire in BPS-16. Consequently, any action or order denying his

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retirement in BPS-16, without lawful cause, procedural justification, or valid reasoning, is contrary to settled legal principles, inequitable, and of no legal effect. Reliance is placed upon Pakistan through Ministry of Finance Economic Affairs and another v. FECTO Belarus Tractors Limited (PLD 2002 Supreme Court 208), Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali (2006 SCMR 678), Bashir Ahmed Solangi v. Chief Secretary, Govt. of Sindh, Karachi and 2 others [2007 PLC (C.S.) 824], Mst. Basharat Jehan v. Director-General, Federal Government Education, FGEI (C/Q) Rawalpindi and others (2015 SCMR 1418), Muhammad Yaseen and others v. Province of Sindh through Secretary Education and Literacy Department, Government of Sindh at Karachi and others (2023 SCMR 1703), Pakistan Railways through Chief Executive Officer / Senior General Manager, Lahore and another v. Muhammad Aslam (2024 SCMR 97) and Government of Balochistan though Secretary Forest and Wildlife Department, Quetta and another v. Ghulam Rasool and others

(2024 SCMR 1155).

The Hon’ble Supreme Court in the case of Muhammad Yaseen supra has observed as under:-

“7. By and large, a vested right is a right that is unqualifiedly secured and is not conditional on any particular event or set of circumstances. In fact, it is a right independent of any contingency or eventuality which may arise from a contract, statute or by operation of law. The doctrine of locus poenitentiae sheds light on the power of receding till a decisive step is taken, but it is not a principle of law that an order once passed becomes irrevocable and a past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of such an illegal order, however, in this case, nothing was articulated to the effect that the petitioners managed their appointments letters due to any fraud or misrepresentation.”

8.The impugned order reflects neither a proper appraisal of the petitioner’s service record nor a lawful determination of the alleged irregularity in his placement in BPS-16. A vague reference

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to policy constraints or absence of concurrence from the Finance Department, without initiating any corrective proceedings during the petitioner’s tenure, cannot retrospectively divest him of a grade in which he admittedly served for years. Even otherwise, if the department was of the view that the petitioner’s up-gradation was irregular, it was incumbent upon the competent authority to take timely corrective action in accordance with law, after affording due process. Having allowed the petitioner to continue in BPS-16, draw salary, and discharge duties attached to that post until superannuation, the respondents are estopped from contending, at the stage of retirement, that the said placement was inadmissible.

9.Furthermore, the plea that the petitioner’s placement skipped tiers under the 4-Tier Service Structure is a matter internal to the department. An employee cannot be penalized for alleged procedural lapses attributable to the employer, particularly when no allegation of fraud, misrepresentation, or concealment has been levelled against him. The Hon’ble Supreme Court has repeatedly held that benefits extended by the competent authority, and acted upon for a considerable period, cannot be withdrawn retrospectively to the detriment of an employee in the absence of illegality tainted by fraud. No such element is discernible from the record. The impugned order also fails to meet the test of proportionality. Even assuming some procedural irregularity in the initial placement, the extreme consequence of retiring the petitioner in a lower grade, thereby substantially diminishing his pensionary benefits, without any finding of misconduct or illegality on his part, is manifestly disproportionate and arbitrary.

10.Needless to say, pension is not a bounty but a vested right earned through long years of service; any action adversely affecting such right must withstand strict constitutional scrutiny. Lastly, the principle of consistency in judicial and administrative action demands that similarly situated employees be treated alike unless a distinguishing feature is clearly demonstrated. The

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respondents have not been able to differentiate the petitioner’s case from that of Tahir Javed and M. Riaz, who were permitted to retire in BPS-16. Unequal treatment without rational classification offends Article 25 of the Constitution and renders the impugned order unsustainable. Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 provides shield against any kind of discrimination by the authorities at the helm of affairs of the government or its institutions. Any act of discrimination on the part of the administrative authorities has been deprecated by the Hon’ble Supreme Court in the case reported as Ejaz Akbar Kasi v. Ministry of Information and Broadcasting (PLD 2011 Supreme Court 22), Inspector General of Police, Quetta and another v. Fida Muhammad and others (2022 SCMR 1583), Province of Punjab through Chief Secretary, Lahore and others v. Qasim Mehmood and others (2025 SCMR 14) and Mst. Nabila Niaz and others v. Secretary Health and others [2020 PLC (C.S.) 675].

11.The Supreme Court in Fakhar Majeed’s case supra has held that prolonged administrative inaction or failure to convene a Departmental Promotion Committee (DPC), despite eligibility and performance of duties, cannot prejudice the employee’s rights. In the present case, the petitioner has lawfully discharged duties in BPS-16 for several years, and objections raised in the impugned order do not negate his entitlement to retirement in the grade held.

12.The petitioner has lawfully performed the duties of Chief Dental Technician in BPS-16 and has acquired vested rights therein. Denial of retirement notification in BPS-16 amounts to arbitrariness and discrimination. The impugned order dated 27.05.2025 is void and of no legal effect, as it fails to satisfy the requirements of fairness, equality, and natural justice.

13.In view of the above, instant petition is allowed and impugned order dated 27.05.2025 is set aside being illegal and without lawful authority. The department shall issue petitioner’s

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retirement notification in BS-16 and consequent benefits accordingly.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge *Sultan / A.H.S.*