THE
HIGH COURT OF SINDH,
Before:
Justice Mohammad Karim Khan Agha
Justice Adnan-ul-Karim Memon
CP No.D-4504
of 2023
[Ziauddin
Ahmed v. Federation
of Pakistan and others]
Petitioner : Through Mr. M. Nishat Warsi
advocate
Respondent No.1-3
: Through
Ms. Wajiha Mehdi Asstt. Attorney General for Pakistan along with Abdul Jabbar
Deputy Director on behalf of Marine Fisheries Department, Govt. of Pakistan
Date of hearing :
08.09.2025
Date
of decision : 08.09.2025
J U D
G M E N T
Mohammad Karim Khan Agha, J. The petitioner has filed the instant petition, wherein it is
stated that he was initially appointed as an Assistant in the Economic Affairs
Division, Ministry of Finance & Economic Affairs, vide Office Order dated
03.08.1988. Subsequently, his services were declared surplus from Economic
Affair Division Karachi and were placed at the disposal of Ministry of Food,
Agriculture & Livestock for his absorption in the Marine Fisheries
Department, Karachi, under Rule 3(3) of the then Civil Servants (Appointment,
Promotion & Transfer) Rules, 1973. Thereafter, on the recommendations of
the Departmental Promotion Committee (DPC) of the Marine Fisheries Department,
the petitioner was promoted to the post of Superintendent (BS-16) vide Office
Order dated 08.03.2018. Subsequently, vide Notification dated 15.06.2022, the petitioner
was granted time-scale promotion to BS-17 with effect from 26.02.2021, upon the
recommendations of the DPC and with the approval of the Secretary, Ministry of
Maritime Affairs. The petitioner asserts that, in accordance with the
applicable rules, he is entitled to regular promotion to the post of
Administrative Officer (BS-16). Accordingly, he submitted a representation
dated 07.06.2023, requesting regular promotion, which was duly forwarded to the
Ministry along with the working paper for consideration before the DPC. The
petitioner averts that he is the sole eligible candidate for promotion to the
said post, which has remained vacant since the retirement of the previous
incumbent on 01.01.2018. It is further contended that the petitioner's case is
fully covered under the relevant provisions of the Esta Code, which stipulate
that for promotions to BS-17 and BS-
(a) Direct the respondents to consider and decide his request for promotion dated 07.06.2023;
(b) Direct the respondents to hold and conduct the DPC before his retirement i.e.11.10.2023;
(c) Direct the respondents to grant him promotion with effect from 26.02.2021 when he completed the period of three years as required under the rules;
(d) Award costs;
(e) Any
other relief(s) under the circumstances of the case, in favour of the
petitioner and the
2. Learned counsel for the petitioner
vehemently argued that though petitioner fulfills the criteria and he is the
only candidate to be promoted to the post of Administrative Officer, which is
lying vacant since 01.01.2018 but still DPC has not been constituted despite
request of the petitioner; that petitioner is entitled to be promoted on
regular basis to BS-17 but his case has not been forwarded by the respondent
No.3 to the concerned Secretary for constitution of DPC and waited till
superannuation of the petitioner on 11.10.2023; that case of the petitioner is
based on discrimination; hence the petitioner is entitled to be awarded
pro-forma promotion after retirement. In support of his arguments, reliance is
placed upon the cases of Secretary School of Education and others vs. Rana
Arshad Khan and others (2012 SCMR 126), Wadhu Mal vs. Province of Sindh
through Principal Secretary Chief Minister and 3 others (2023 PLC (C.S)
1310) and an unreported order dated 01.09.2025 passed by this Court in the case
of Hina Imran vs. Federation of Pakistan
and others (C.P.No.D-6684/2022).
3. On the other hand learned Assistant
Attorney General argued that case of the petitioner is based on malicious
intent; that petitioner was not entitled to the promotion and has no valid
claim, as such, DPC was not convened for him. Lastly argued that petitioner has
no right to the promotion he is seeking, hence prayed for dismissal of instant
petition.
4. We have heard learned counsel for the
parties and perused the material available on record.
5.
We agree with learned AAG that no employee
has a vested right to promotion. On the other hand an employee’s promotion
cannot be denied to him due to the lethargy and inefficiency of the competent
authority. In this case the petitioner was a regular employee at BS
6.
The petitioner was top of the
seniority list and a working paper was prepared in his case in the following
terms;
“WORKING PAPER
FOR DEPARTMENTAL PROMOTION COMMITTEE TO RECOMMEND THE PROMOTION OF THE ONE (01)
VACANT POST OF ADMINISTRATIVE OFFICER (BS-17) IN MARINE FISHERIES DEPARTMENT,
A post of Administrative
officer (BS-17) fell vacant with effect from 01st January, 2018 due
to retirement of its incumbent (Mr. Manthar Ali Mirani) vide MoMA Notification
No.1-5/2016-Fish, dated 06.12.2017 (Annexure-I). There is only one (01)
post of Administrative officer (BS-17) is on sanctioned strength Marine
Fisheries Department,
2. According to the Departmental
Recruitment Rules issued vide Establishment Division S.R.O 2036(1)/2022, dated
07th November, 2022 (Annexure-II). The post of Administrative
officer (BS-17) will be filled by 100% promotion among the Superintendent (BS-16),
Store & Accounts officer (BS-16) and Assistant Administrative officer
BS-16). Mr. Ziauddin Ahmed,
Superintendent (BS-16) is only eligible candidate, whereas, the post of Sore
& Accounts officer (BPS-16) and Assistant Administrative officer (BS-16)
are vacant since its inception in this department as these posts are
transferred from development side to non-development side. It is further
submitted that Mr.Ziauddin Ahmed, Superintendent (BS-16) will retire from
Government service on 12-10-2023 on superannuation.
3. As the post is required to be filed by
100% promotion therefore, Roster is not required in this case. The Synopsis of
ACR(s), Panel of eligible candidate, Senioirty List and No Disciplinary
Certificate are attached (Annexure-III to VI).
4. According
to the Seniority list of Superintendent (BS-16) only Mr. Ziauddin Ahmed,
Superintendent (BS-16) in the channel of promotion, for promotion to the post
of Administrative Officer (BS-17).
5. The composition of DPC for the post of
BS-17 & BS-
i) Secretary
(BS-22) Chairman
Ministry of Maritime Affairs,
ii) Joint
Secretary-II (BS-20) Member
Ministry of Maritime Affairs,
iii) Director
General (BS-20) Member
Marine Fisheries Department,
6. DPC
is required to kindly consider and recommend the case of promotion to one (01)
vacant post of Administrative officer (BS-17) in Marine Fisheries Department,
7.
It was noted in the working paper
for the Departmental Promotion Committee (DPC) that the petitioner was the only
candidate who met the requirements to be promoted to BPS 17 and would stand
retired on reaching superannuation on 12.10.2023. Not withstanding the working
paper being forwarded to the DPC no DPC was convened in respect of the petitioner’s
promotion through no fault of the petitioner and the petitioner stood retired
without being considered for promotion despite him being legible for promotion
to the next grade due to the failure of his DPC being timely held.
8.
Since the petitioner has now
retired the court rather than let him suffer through no fault of his own can
come to his rescue by way of proforma promotion whereby the petitioner can be
promoted after his retirement provided that he met the legal requirements, the
DPC was not convened through no fault of his own but rather on account of the
inability of the competent authority to hold the DPC in a timely manner before
the petitioner retired which date was set out in the working paper and the
members of the DPC would have been well aware of.
9.
When a regular employee has
devoted long years of unblemished service he should not be deprived of the
opportunity of promotion simply because the DPC was not timely convened. Rather
the obligation is on the DPC to decide upon the petitioners case before he
reaches retirement especially when they are well aware of the date of a
petitioners superannuation.
10. In
the case of Secretary Agriculture,
Livestock and Cooperation Department,
“9. In the present case the DPC has not considered
the case for promotion of respondent and the reason assigned is that he has
retired. This reason given by the DPC, apparently, is no reason in law, in
that, once the Model Working Paper for promotion of respondent was placed
before the DPC, it was incumbent upon it to have considered and decided the
same, for that, though the law does not confer any vested right to a government
servant to grant of promotion but the government servant surely has a right in
law to be considered for grant of promotion. It is because of the department's
own non-vigilance and the DPC being insensitive to the employees who were on
the verge of retirement of which the employees could not be made responsible,
cannot simply brush aside the case of an employee by merely saying that he has
retired. Once the case of respondent has
matured for promotion while in service and placed before the DPC before
retirement, it was incumbent upon the DPC to fairly, justly and honestly
consider his case and then pass an order of granting promotion and in case it
does not grant promotion, to give reasons for the same. This was not done by
the DPC and in our view such was a miscarriage of justice to respondent.”
11. In the case of Secretary School of Education and others vs. Rana Arshad Khan and
others (2012 SCMR 126), the Supreme Court has held as under:
“6………….Coming to the facts of this, we find that it has not been disputed
before this Court that much before the retirement of the respondents, a working
paper was prepared by the department with regard to their promotion but the
matter was delayed without any justifiable reason and in the meanwhile
respondents attained the age of superannuation. They cannot be made to suffer
on account of the departmental lapse. The argument of learned Law Officer that
the respondents were not entitled at the relevant time to be granted promotion
for one reason or the other is rather misconceived as the operative part of the
impugned judgment has candidly directed that the working paper of the
respondents shall be prepared and they will be considered for grant of next
grade notwithstanding their retirement, if they are even otherwise found
entitled thereto. This in fact would now be pro-forma promotion.”
12. This
Court in an unreported order of this Court in the case of Altaf Hussain Awan vs. Province of Sindh and others, etc.
(C.P.No.D-1344 to 1346 of 2024) has held as under:
“14. Coming to the main
case, the concept of Proforma Promotion is to remedy the loss sustained by an
employee / civil servant on account of denial of promotion upon his/her
legitimate turn due to any reason but not a fault of his own.
15. To appreciate the
controversy from a proper perspective, we think it appropriate to have a glance
at Rule 7-A of the Sindh Civil Servants (Appointment, Promotion, and Transfer)
Rules, 1974 which is reproduced under:-
“7-A
-(1) The appointing Authority may approve the promotion of an Officer or
official from the date on which the recommendation of the Provincial Selection
Board or, as the case may be, the Departmental Promotion Committee is made.
(2)
Notwithstanding anything contained in rule 31 of the Sindh Civil Services
Rules, the Officer of official who expires or superannuates after the
recommendations of the Provincial Selection Board of the Departmental Promotion
Committee and before issuing the notification of promotion shall stand exempted
from assumption of the charge of the higher post.
(3) The
Accountant General in the case of an Officer and an officer authorized in this
behalf in the case of an official will give a certificate to the effect that
the officer or official has expired or superannuated.]”
16. From
the above it is clear that a civil servant is entitled to proforma promotion.
In this context, the Supreme Court of Pakistan in the case of Secretary Schools of Education
and others v. Rana Arshad Khan and others (2012 SCMR 126) while granting Proforma
promotion to retired public servants has held as under:-
“Much
before the retirement of the respondents, a working paper was prepared by the
department with regard to their promotion but the matter was delayed without any justifiable reason, and in the
meanwhile, respondents attained the age of superannuation. They cannot be made
to suffer on account of the departmental lapse."(bold
added)
17. The Supreme Court in the case of Federation of Pakistan through
Secretary, Ministry of National Health Services Vs. Jahanzaib and others
(2023 PLC (C.S.) 336) has held that
if a person is not considered due to any administrative slip-up, error, or
delay when the right to be considered for promotion is matured and without such
consideration, he reaches the age of superannuation, then obviously the avenue
or pathway of proforma promotion comes into the field for his rescue. (bold
added)
18. …..
19….
20. In
the light of the position explained above, it is concluded that a civil servant
has a fundamental right to be promoted even after his retirement by awarding
proforma promotion; provided, the right of promotion accrued during his service
but could not be considered for no fault of their own and meanwhile, they
retired on attaining the age of superannuation without any shortcoming on their
part about deficiency in the length of service or in the form of inquiry and
departmental action was so taken against their right of promotion. Thus we are
inclined to entertain the request of the petitioners in these matters for
proforma promotion. On the aforesaid proposition, we are fortified by the
decisions of the Supreme Court rendered in the cases of Dr. Syed Sabir Ali v.
Government of Punjab through Secretary Health Punjab and others, 2008 SCMR 1535,
Federation of Pakistan and others v. Amir Zaman Shinwari, Superintending
Engineer, 2008 SCMR 1138 and Dr. Muhammad Amjad v. Dr. Israr Ahmed, 2010 SCMR
1466.(Bold added)
13. Based
on the particular facts and circumstances of the case we for the aforesaid
reasons allow this constitutional petition and direct the competent
authority/respondents to consider the case of the petitioner for proforma promotion
in BS-17 by way of circulation. As the petitioner has already retired,
therefore, his proforma promotion will not affect the seniority of any person
already in service and the petitioner would be entitled to his higher emoluments
and pensionary benefit from 12.10.2023 being the date of his retirement if he
is granted proforma promotion.
14. A
copy of this Judgment shall be sent to the Secretary of the Marine Fisheries
Department,
15. This
petition is disposed of in the above terms
head of Const. Benches
Judge