Stereo. H C J D A-38.

JUDGMENT SHEET
IN THE PUNJAB SUBORDINATE JUDICIARY
SERVICE TRIBUNAL LAHORE
JUDICIAL DEPARTMENT

Service Appeal No.06 of 2017

Zafar Hussain Bhatti

Versus
Lahore High Court, Lahore through its Registrar

JUDGMENT

Date of hearing: 24.04.2024.

Appellant by: Ms. Sabahat Rizvi, Advocate along
with appellant.
Respondent by: Mr. Manzoor Hussain Dogar,
Advocate.

MUHAMMAD SAJID MEHMOOD SETHI, J./CHAIRMAN:-

Through instant appeal, appellant has assailed orders dated
03.05.2017 and 19.05.2017, passed by respondent, whereby
appellant’s request for grant of proforma promotion as District
& Sessions Judge was declined.
2. Brief facts are that appellant was served with show cause
notice dated 29.05.2013 with the allegation that he while posted
as Additional District & Sessions Judge, Pattoki, vide order
dated 15.08.2012 granted post arrest bail to accused in case FIR
No.57 dated 16.02.2012, registered under section 9-C of the
Control of Narcotics Substance Act, 1997 (the “CNSA”) at
Police Station, City Phool Nagar, District Kasur, for having
been found in possession of 15-1/2 kilograms Charas, which
was against the provisions of section 51 of the CNSA, which
was an order passed beyond jurisdiction and amounted to
inefficiency and misconduct within the contemplation of Rule
6(3) of the Punjab Civil Servants (Efficiency and Discipline)
Rules, 1999. As a result, minor penalty of withholding
promotion for a period of three years with effect from 2012 was
imposed vide Notification dated 27.09.2016. Feeling aggrieved,
 2
Service Appeal No.06 of 2017

appellant filed review petition for setting aside the afore-said

Notification and grant of proforma promotion, which was
declined vide orders / letters dated 03.05.2017 & 19.05.2017.
Hence, instant appeal.
3. Learned counsel for appellant submits that appellant’s
promotion was approved by the Hon’ble Chief Justice and
Judges w.e.f. 06.08.2012 on the recommendations of the
Provincial Judicial Selection Board, therefore, subsequent show
cause notice dated 29.05.2013 cannot operate retrospectively as
to impair appellant’s legitimate right. He adds that grant of bail
is a judicial function and a routine matter, therefore,
disciplinary proceedings could not have been initiated. He
contends that appellant’s promotion was a regular promotion
under section 2(2) of the Punjab Civil Servants Act, 1974 and
not on officiating basis under Rule 13(i) of the Punjab Civil
Servants (Appointment and Conditions of Service) Rules, 1974.
He argues that there was inordinate delay of almost three and
half years in conclusion of disciplinary proceedings, which is
not a bar to consider appellant for promotion. He further
submits that major penalty of withholding promotion could not
have been imposed without holding regular inquiry. He
contends that allegation of inefficiency is vague and is not
supported by any material rather appellant earned good PERs
throughout his career. In the end, he submits that appellant has
been victimized for no fault of his own, therefore, he is entitled
for grant of proforma promotion under the law. He has relied
upon Secretary Kashmir Affairs and Northern Areas Division,
Islamabad v. Saeed Akhtar and another (PLD 2008 Supreme
Court 392),
4. Conversely, learned counsel for respondent submits that
appellant along with others was promoted on officiating basis,
with direction to remain on probation period of one year
extendable to further 02 years, thus, question of retrospective
effect of the penalty does not arise because promotion could be
withheld from the date when it fell due. He contends that a
 3
Service Appeal No.06 of 2017

glaring instance of inefficiency emerged from judicial record,

therefore, regular inquiry was dispensed with, however all legal
and codal formalities were observed, proper show cause notice
was issued and opportunity of personal hearing was also
afforded to appellant.
5. Arguments heard. Available record perused.
6. Perusal of record shows that appellant was promoted as
District and Sessions Judge (BS-21), on the recommendations
of the Provincial Judicial Selection Board, vide Notification
dated 06.08.2012, however subsequently, Vide Notification
dated 27.09.2016, appellant’s promotion was ordered to be
withheld from the year 2012 for a period of three years,
retrospectively, overlooking the fact that promotion already
stood notified by the competent authority which was neither
rescinded nor recalled. It is not the case of respondent that
appellant was short of eligibility criteria for the promotion and
admittedly, recommendations of a duly convened Provincial
Judicial Selection Board were in favour of appellant. In these
circumstances, subsequent events including allegations of
inefficiency and misconduct on passing a bail order or pending
inquiries would become irrelevant once a promotion has been
made after fulfillment of all legal and procedural requirements.
These matters may possibly be taken into consideration while
processing case for further promotion. Reference can be made
to Secretary to Government of the Punjab, Communication &
Works Department, Lahore and others v. Muhammad Khalid
Usmani & others (2016 SCMR 2125 = NLR 2016 Service
117).
Furthermore, a valid promotion order had already been
passed in appellant’s favour, which created certain rights in his
favour. We are of the considered opinion that power of receding
an order is available with the authority before taking a decisive
step. The purpose behind such power is to retrace the wrong
steps taken by the authority, with the exception that where the
order has taken legal effect, and in pursuance thereof certain
 4
Service Appeal No.06 of 2017

rights have been created in favour of an individual, such an

order cannot be withdrawn or rescinded to the detriment of his /
her rights. The principle of animus revertendi or locus
poenitentiae demand that when an order is acted upon and
certain benefits have accrued to the person concerned under the
order, the same cannot be withdrawn with retrospective effect to
deprive that person of the accrued rights. Reference can be
made to Pakistan through the Secretary, Ministry of Finance v.
Muhammad Himayatullah Farukhi (PLD 1969 SC 407),
Capital Development Authority Through Chairman, Islamabad
And Others v. Shabir Hussain And Others (2022 SCMR 627)
and Mrs. Zeenat Parveen Jaffery versus Secretary to
Government of Sind, Education Department and 4 others [1983
P L C (C.S.) 1260].
7. It is well-settled that penalty cannot be imposed
retrospectively unless the authority is vested with such powers
expressly provided under the applicable law / rules. No such
provision has been cited by learned counsel for respondent to
defend the impugned action. A passing reference to some
precedents will not be out of place where the Supreme Court of
Pakistan elaborated the principle of awarding major penalty
retrospectively, including the cases reported as Noor
Muhammad v. The Member Election Commission, Punjab and
others (1985 SCMR 1178) and Syed Sikandar Ali Shah v.
Auditor-General of Pakistan and others (2002 SCMR 1124),
wherein it has categorically been declared that major penalty
could not have been imposed with retrospective effect unless
the competent authority was expressly empowered in this regard
by some statute or rules made thereunder.
8. We note that show cause notice was issued on
29.05.2013, appellant furnished reply on 06.06.2013 and
personal hearing was afforded on 08.06.2013 (as per stance of
appellant), however the proceedings were concluded by issuing
Notification dated 27.09.2016 i.e. after lapse of more than three
years from personal hearing. No justification and sufficient
 5
Service Appeal No.06 of 2017

reasons have been advanced by respondent for the delay in

concluding the proceedings, especially when regular inquiry
was dispensed with on the ground that judicial order was
sufficient to show the inefficiency and misconduct. We observe
that pendency of disciplinary proceedings was also a
punishment and appellant had suffered such agony and mental
torture for such a long period. Reference can be made to Raja
Muhammad Shafique Javaid v. Lahore High Court through
Registrar [2005 PLC (C.S.) 1015].
9. Needless to say that a judicial officer while hearing a
case is at liberty to decide the same by applying law on the facts
thereof based on the available record. A decision passed by any
judge may ultimately turn out to be wrong and be set aside by
higher judicial forum. The erroneous exercise of judicial power
resulting into passing of an order on the basis of incorrect
application of law, however cannot and should not cast doubt
on the integrity of the judicial officer. The quality of a judgment
/ order passed by a judicial officer can only be judged in
appellate judicial proceedings and ordinarily not through
disciplinary proceedings unless the extraneous considerations
for which a judgment / order was passed are proved through
cogent material brought before the inquiry officer. The inquiry
officer / hearing officer while conducting disciplinary
proceedings cannot act as the appellate / revisional forum over
the judgments / order passed by the judicial officer. The judicial
independence of subordinate judiciary is required to be
observed and respected at all cost and the inquiry
officer/hearing officer must tread extremely cautiously in such
matters otherwise it would put a chilling effect on the working
of the subordinate judiciary in performing their judicial
functions freely and fairly. Reference can be made to Ishwar
Chand Jain v. High Court of Punjab & Haryana (AIR 1988 SC
1395) and K.P. Tiwari v. State of Madhya Pradesh (AIR 1994
SC 1031). The observation of the Indian Supreme Court, in
latter case, are as under:-
 6
Service Appeal No.06 of 2017

“4 …. The higher courts every day come across orders of

the lower courts which are not justified either in law or in fact
and modify them or set them aside. That is one of the
functions of the superior Courts. Our legal system
acknowledges the fallibility of the judges and hence provides
for appeals and revisions. A judge tries to discharge his
duties to the best of his capacity. While doing so,
sometimes, he is likely to error. It is well said that a judge
who has not committed an error is yet to be born. And that
applies to judges at all levels from the lowest to the highest.
Sometimes, the difference in views of the higher and the
lower courts is purely a result of a difference in approach
and perception. On such occasions, the lower courts are not
necessarily wrong and the higher courts always right. It has
also to be remembered that the lower judicial officers mostly
work under a charged atmosphere and are constantly under
a psychological pressure with all the contestants and their
lawyers almost breathing down their necks more correctly up
to their nostrils. They do not have the benefit of a detached
atmosphere of the higher courts to think coolly and decide
patiently. Every error, however gross it may look, should not,
therefore, be attributed to improper motive…”

In a judgment reported as Rao Abdul Jabbar Khan v.

Registrar, Lahore High Court, Lahore [2016 PLC (C.S.) 281],
this Court held that in the absence of any evidence it will not be
fair to suggest that bail cancellation order passed by the judicial
officer was based on malice and that malice cannot be presumed
on the basis of surmises and conjectures.
10. In the present case, there is no supporting material to
establish any extraneous considerations on the part of the
appellant to have passed the order which was the subject matter
of the inquiry. The impugned order was passed on the
allegations of inefficiency and misconduct but no efforts were
made to substantiate these allegations by way of a detailed
inquiry, especially in view of stance of appellant that he secured
outstanding PERs throughout his service career and received no
adverse remarks of misconduct or being inefficient. To our
mind, the allegations of inefficiency and misconduct are also
not proved, hence, impugned orders are unsustainable in the eye
of law.
11. Learned counsel for respondent argued that appellant was
promoted on officiating basis subject to assumption of charge of
the post and was placed under probation and impugned order
 7
Service Appeal No.06 of 2017

was passed before assumption of charge and during probation

period, thus, question of retrospective punishment does not
arise. Suffice it to say that as the order of imposition of penalty
is not a valid order in view of judgments of the superior Courts
and our afore-referred observations, therefore, there remains no
justification to give different treatment to appellant from his ten
other colleagues, especially when some of them were given
posting immediately after issuance of the promotion order.
Needless to say that the promotion was made as per eligibility
criteria against the substantive posts after fulfillment of all legal
requirements and same was also not rescinded at any
subsequent stage. Even otherwise, the issue has been settled by
the Supreme Court of Pakistan in the case of Muhammad
Khalid Usmani supra. The operative part of the observations is
reproduced hereunder:-
14. It is clear and obvious from a perusal of Rule 13(i)
ibid that an appointment by promotion 'on officiating basis'
can be made against posts which fall vacant as a result of
the circumstances mentioned in the said Rule. We have
specifically asked the learned Law Officer if the posts
against which the respondents were promoted had fallen
vacant as a result of any of the situations mentioned in rule
13(i) of the Rules. He has frankly conceded that this was not
the case, and that the respondents were promoted against
regular vacancies which had been available in the ordinary
course of events. It is also evident from the record that the
respondents possessed the qualification and experience
required for promotion from the post of Assistant Engineers
to Executive Engineers. In this context, reference may be
usefully made to Jafar Ali Akhtar Yousafzai v. Islamic
Republic of Pakistan (PLD 1970 Quetta 115)
….

21. During hearing of these appeals, we have noted with

concern that the device of officiating promotion, ad hoc
promotion/appointment or temporary appointment etc. is
used by Government Departments to keep civil servants
under their influence by hanging the proverbial sword of
Damocles over their heads (of promotion 'on officiating basis'
liable to reversion). This is a constant source of insecurity,
uncertainty and anxiety for the concerned civil servants for
motives which are all too obvious. Such practices must be
seriously discouraged and stopped in the interest of
transparency, certainty and predictability, which are
hallmarks of a system of good governance. As observed in
Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530)
"a tamed subservient bureaucracy can neither be helpful to
 8
Service Appeal No.06 of 2017

the Government nor it is expected to inspire public

confidence in the administration".
….

23. We are of the view that promotion on an officiating

basis should be resorted to only in the circumstances
visualized in rule 13(i) of the Rules. Further, the spirit of such
action, a purely temporary and stopgap arrangement for a
limited period, should be kept in mind. In no circumstance
should such a stopgap arrangement be allowed to continue
for years on end. On our query, we have been informed that
the usual period of probation provided by the law for regular
posts by way of direct appointments is a maximum of two
years. It would, therefore, be just and fair if the said
timeframe is followed in case of promotion on officiating
basis also, unless there are extraordinary circumstances
necessitating extension of such period further for a limited
duration, and such extraordinary circumstances must be
reduced in writing by the competent authority directing such
extension. We may, however, emphasize that such
extensions cannot be undertaken in a routine and
thoughtless manner and can only be made where
circumstances spelt out in rule 13 ibid are in existence. In
addition, if the law provides a specified period of probation
for appointments against regular posts, we do not see any
reason why a free hand should be given to Government
Departments to undertake promotions on officiating basis for
unlimited and unspecified periods.”

12. For the foregoing reasons, instant appeal is allowed and

orders qua imposing penalty of withholding promotion for a
period of three years with effect from 2012 and declining
appellant’s request for grant of proforma promotion are set
aside. Appellant is entitled to the grant of proforma promotion
and consequent monetary benefits as per law.

(Muhammad Sajid Mehmood Sethi)

Chairman

(Abid Husain Chattha) (Rasaal Hasan Syed)

Member Member
APPROVED FOR REPORTING

Chairman

*Sultan*