ZAKIR HUSSAIN SAMO vs The PROVINCE OF SINDH Promotion — 2025 PLC(CS) 634 KARACHI-HIGH-COURT-SINDH

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ZAKIR HUSSAIN SAMO VS The PROVINCE OF SINDH Promotion---Pro forma promotion, Entitlement, Government servant filed constitutional petition (on 14.10.2022), eight (08) days before his date of retirement---Contention of the petitioner was that the post in Grade-19 was sanctioned in the Budget for the year 2022-2023, whereas, time and again requests were made to consider his case for promotion but no response was given, hence, in the alternative, petitioner was entitled for a pro forma promotion---Version of the respondents was that delay in conducting a meeting of the Promotion Committee had occurred due to non-finalization of promotion rules for the newly created post---Validity---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 before the promotion, then obviously the avenue or pathway of pro forma promotion comes into field for his rescue---If he lost his promotion on account of any administrative oversight or delay in the meeting of DPC or Selection Board despite having fitness, eligibility and seniority, then in all fairness, he has a legitimate expectation for proforma promotion with consequential benefits---If due to any non-vigilance and insensitivity of a department, promotion of employees who are on the verge of retirement has been delayed, then the employees are not to suffer, entitling them to claim proforma promotion---Undisputedly, the petitioner was at Serial No.1 of the last seniority list issued by the respondents / Department whereas, it was also not in dispute that a post of Additional Director (BS-19) had been created and sanctioned, however, it was asserted by the respondents that the same (post) was not yet operationalized; but, for this the petitioner could not be blamed---Regarding the version of the respondents (that delay in not conducting a meeting of the Promotion Committee due to non-finalization of promotion Rules for the newly created post), was again not the fault of the petitioner---Therefore, in the given facts, the petitioner appeared to have been subjected to discrimination and had been deprived to claim his right to be considered for further promotion---Though the law did not confer any vested right to a Government servant to seek promotion but he surely had a right in law to be considered for grant of promotion---In Government service claiming a higher grade or promotion to the next positionis not a matter of right, but at the same time, one being otherwise eligible, has a right to be considered for such promotion in accordance with the relevant law and rules---Thus, a case for exercising discretion by the High Court had been made out in the present case---Since the Petitioner stood retired now, his eligibility should be considered for pro forma promotion to Grade-19, and if found eligible he shall be promoted---Constitutional petition was allowed accordingly. art. 199---Sindh Civil Servants act (XIV of 1973), Ss. 4(b) & 9(1)---Sindh Service Tribunals act (XV of 1973), S. 4---Civil service---Promotion---Constitutional petition---Maintainability---Undisputedly, the petitioner was only asking to be considered for promotion to the post (of Grade-19) which was created while he was in service---according to S. 9(1) of the Sindh Civil Servants act, 1973, a civil servant is to be considered for promotion if he is eligible on account of possessing the prescribed minimum qualification---This requires determination of his eligibility first and then whether he is fit to be promoted---as per S. 4 of the Sindh Service Tribunals act, 1973, the right to prefer an appeal to the Tribunal can be invoked subject to the fulfillment of two pre-conditions i.e. (i) in case a departmental appeal, review or representation is provided under the law, no appeal to the Tribunal shall lie unless such a remedy is availed by the aggrieved civil servant and (ii) a period of 90 days has elapsed since such departmental appeal, review or representation has been preferred---admittedly, neither any final order had been passed by the departmental authority against the petitioner, nor against such order any appeal, review or representation to a departmental authority had been provided under Sindh Civil Servants act, 1973, or any rules thereof---Similarly, S. 4(b) of the Sindh Civil Servants act, 1973, also prohibited an appeal in that no appeal laid to the Tribunal against an order of a departmental authority determining fitness or otherwise of a person in respect of promotion---In the present matter, the petitioner's eligibility was yet to be determined and his claim for promotion to Grade-19 had not yet been decided finally by anyone---Rather, an excuse had been given that certain rules were to be framed which had not been done and since the petitioner was retired now, his eligibility could not be decided now , which did not appear to be the correct approach---Nothing had prevented the respondents from deciding petitioner's fate in said regard and failure on their part could not be attributed to the Petitioner---Therefore, in such circumstances the petitioner could not have approached the Tribunal for rederessal of his grievance---Thus, a case for exercising discretion by the High Court had been made out---Since the petitioner stood retired now, his eligibility should be considered for pro forma promotion to Grade-19, and if found eligible, he shall be promoted---Constitutional Petition was allowed accordingly.

ZAKIR HUSSAIN SAMO vs The PROVINCE OF SINDH Promotion — 2025 PLC(CS) 634 KARACHI-HIGH-COURT-SINDH

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