IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE GULZAR AHMED, HCJ
MR. JUSTICE MUHAMMAD ALI MAZHAR

CIVIL PETITION NO.3455 OF 2020

(Against the judgment dated 12.10.2020
Islamabad High Court, Islamabad in
W.P.No.3200/2013)

Capital Development Authority through its

Chairman, Islamabad and others.
…Petitioners

VERSUS

Shabir Hussain and others

…Respondents

For the Petitioners: Hafiz Arfat Ahmad, ASC

Raja Abdul Ghafoor, AOR

For Respondents: N.R

Date of Hearing: 01.12.2021

JUDGMENT

MUHAMMAD ALI MAZHAR, J.- This Civil Petition is brought to

challenge the judgment dated 12.10.2020, passed by learned Islamabad
High Court in Writ Petition No.3200 of 2020, whereby the writ petition
was allowed and the impugned order dated 02.08.2013 issued by CDA
for cancelling/withdrawing the promotions of the respondents was set
aside.

2. The transient facts of the case are that the respondents No.1 to 7 are
the regular employees of CDA. On recommendation of DPC, they were
promoted to the post of Assistant Director (BS-17) in Engineering Cadre
on acting charge basis vide order dated 13.02.2012. However vide order
dated 14.3.2013, they were promoted on regular basis but after some
CP.No.3455/2020 -2-

time, the order of promotion was withdrawn vide office order dated
02.08.2013. Being aggrieved, the respondents filed a Writ Petition in the
Islamabad High Court which was allowed and impugned order was set
aside.

3. The learned counsel for the petitioners argued that the learned High
Court failed to consider that the promotion of the respondents was not
legal as the posts were to be filled through direct recruitment after
written test and interviews and not through promotion and when the
competent authority came to know about the illegal promotions, the
same was withdrawn/cancelled. The learned counsel for the CDA in
support of his contention also cited a judgment rendered by this Court in
the case of Maula Bux Shaikh and others Vs. Chief Minister Sindh and
others (2018 SCMR 2098) and argued that the petitioners are in process
of amending their service rules/regulations commensurate to the law laid
down in the above case.

4. Heard the arguments. Consistent with Section 51 of the Capital

Development Authority Ordinance, 1960, the Authority may make
Regulations and publish it in the Official Gazette. Section 37 of the
aforesaid Ordinance germane to powers of the Authority to appoint
officers, experts or consultants on such terms and conditions as it may
deem fit, whereas under Section 38, it is the responsibility of the
Authority to lay down the procedure for the appointment of its officers,
servants, experts and consultants and terms and conditions of their
services. In exercise of aforesaid powers conferred on the Authority, the
Capital Development Authority Employees (Service) Regulations 1992
were enacted. It is distinctively visible from Regulation No.4.03 that it
stipulates three methods of appointment such as (a) by initial
appointment in accordance with Part-II; (b) by promotion in accordance
with Part-III; and (c) by transfer in accordance with Part-IV. In order to
appraise and dwell on the cases of nominated persons for promotion and
forwarding recommendations to the competent authority, the
Departmental Selection Committees/Departmental Promotion
Committees are constituted under Regulation No.4.04 with its
composition as described and enunciated in Regulation No.4.05. Part-III
of the Regulations, encapsulates “Appointment by Promotion” in different
CP.No.3455/2020 -3-

Basic Pay Scales (BPS) and the procedure for promotion is set forth
under Regulation No.4.17. In unison, Regulation No.4.18, commands
that an employee possessing such minimum qualification and length of
service and fulfilling other conditions specified shall be eligible for
promotion to a higher post. So far as the yardstick or touchstone to fulfill
the condition of length of service, Regulation No.4.20 spells out in simple
terms that no promotion shall be made to the post in BPS-18 and above
unless the employee has completed minimum length of service for such
promotion and according to the table jot down in this Regulation for
promotion to the post in BPS-18, five years of service in BPS-17 was
required; whereas for promotion to a post in BPS-19, the threshold of
twelve years of service in BPS-17 and above was to be completed and for
promotion to the post in BPS-20, seventeen years of service was required
in BPS-17 and above.

5. Undoubtedly, the respondents are regular employees of CDA. They

were considered for promotion on the basis of their seniority. Their
promotion to the post of Assistant Directors in BS-17 was recommended
by DPC after due consideration of credentials and ACRs and the
Competent Authority, vide office order dated 13.02.2012, approved the
promotion of respondents to the post of Assistant Director (BS-17) in
Engineering Cadre on acting charge basis with immediate effect. The
record reflects that the promotion of the respondents was actualized vide
office order dated 14.03.2013 but the said office order was
withdrawn/cancelled vide another office order dated 02.08.2013 without
assigning any reason or notice.

6. As a rule, the Departmental Promotion Committee is constituted by

the Competent Authority to consider promotion and making
recommendations. The promotions of employees/civil servants are
generally decided on the basis of recommendations made by the
Departmental Promotion Committee which is entrusted an onerous and
arduous task to judge the suitability of officers for promotions to
selection and or non-selection posts after assessment of performance,
conduct, aptness and qualification with certain guidelines to standardize
and synchronize the assessment benchmarks of all contenders in a fair,
unbiased and transparent manner keeping in view the “dossier” (detailed
record and information with regard to an officer; a collection
CP.No.3455/2020 -4-

of documents concerning a particular person or matter) or working paper

including ACRs of every individual officer/employee.

7. This was not the case that some illegality was committed by DPC
members or they did not consider the credentials or antecedents of the
each contender prudently and forwarded the recommendation in a
slipshod manner for approval. Once the recommendations of DPC were
acted upon and respondents were promoted, a vested right was created
in their favour which could not have withdrawn in such a inconsiderate
and casual manner. In the case of Chairman, Central Board of Revenue
and another vs. Muhammad Malook and 11 others (1999 SCMR 1540),
this Court in nutshell held that once a person was recommended for
promotion by the Departmental Promotion Committee after having found
him fit and the recommendation of the D.P.C. was accepted by the
competent Authority, a right was created in his favour. Similarly, in the
case of Province of Sindh through A.G., Sindh, Karachi. vs. Kazi Siraj
Ahmad. (2002 SCMR 862), again this court held that the Departmental
Promotion Committee recommended the case of the respondent for
promotion and Senior Member, Board of Revenue being the competent
authority issued the notification which was not in violation of any rules,
so the Service Tribunal had rightly considered the case of the respondent
while allowing the appeal. In the instant case, on the face of it, neither
any fault or defect of respondents was pointed out by CDA nor any
oversight or error on the part of DPC members or its composition or
jurisdiction which could result an unceremonious withdrawal of
promotion order after considerable period. In these set of circumstances,
the doctrine of vested right is quite applicable which conserves that once
a right is lawfully created, its existence should be recognized and
acknowledged, therefore the benefit of promotions earned on DPC
recommendations have become an undeniable and incontrovertible right
of the respondents which could not be cancelled or withdrawn. Another
shortcoming and unlawfulness is that no prior notice or justification was
even shown in the cancellation letter which is flagrant violation of well
settled principle of natural justice which is firmly established and deep
rooted in the judicial conscience to be entrenched and embedded in every
decision making function either judicial, quasi-judicial or administrative
which is a fundamental rule of law that no decision must be taken
affecting the right of any person without first being informed of the case
CP.No.3455/2020 -5-

and affording an ample opportunity of defence. In the likewise context

and perception, due process is also a prerequisite that needs to be
respected at all stratums. In our Constitution, right to fair trial is a
fundamental right under Article 10-A which constitutional reassurance
envisaged the standards that courts must uphold in order to protect
peoples fundamental rights of fair trial and due process of law. This
Court in the case of Warid Telecom (Pvt.) Limited vs. Pakistan
Telecommunication Authority, (2015 SCMR 338) has held that whenever
adverse action was being contemplated against a person a notice and/or
opportunity of hearing was to be given to such person. Said principle is a
fundamental right under Article 10-A in the Constitution. However, both
the requirements of a notice and providing an opportunity of a hearing
may also be dispensed with in certain type of cases e.g. where such
requirement would cause "more injustice than justice" or it was not in
the "public interest". The Indian Supreme Court in the case of Karnataka
Public Service Commission vs. B. M. Vijaya Shankar (AIR 1992 Supreme
Court 952) stated that, when meeting the requirement of notice and
providing an opportunity of hearing will cause "more injustice than
justice" or it is not in the "public interest" the same may be withheld. In
the case of Muhammad Amin Muhammad Bashir Limited vs. Government
of Pakistan through Secretary Ministry of Finance, Central Secretariat,
Islamabad and others (2015 SCMR 630), this Court held that the
exercise of any discretionary power must be rational and have a nexus
with the objective of underlying legislation. Section 24A of the General
Clauses Act, 1897, reiterates the principle that statutory power is to be
exercised reasonably, fairly, justly and for the advancement of the
purposes of the enactment and further clarifies that an executive
authority must give reasons for its decision. Any action by an executive
authority which is violative of these principles is liable to be struck down.

8. The existing Rules or Regulation if amended and notified by CDA will

obviously come into field prospectively and not retrospectively. No such
ground or reason was assigned in the withdrawal/cancellation order,
albeit, the alleged intention or idea to amend the rules or regulation
could not justify to undo or withdraw the promotion orders of the
respondents under the garb of future amendments of rules/regulation
which are non est. Even the rules are amended, the CDA would not be
CP.No.3455/2020 -6-

able to upset or disturb the past and closed transaction. It is not the
case of CDA that promotion was accorded to the respondents due to
some misunderstanding, error, misconception of law or without sanction
of competent authority therefore, the principle of locus poenitentiae is
also attracted to ameliorate and ventilate the sufferings of the
respondents.

9. Though the learned counsel for the petitioners also articulated that
the promotion was withdrawn in view of the judgment of Maula Bux
Shaikh and others vs. Chief Minister Sindh and others (ibid). In the above
case, the petitioner Maula Bux Shaikh in Service Appeal challenged a
Notification to be ultra vires to the Pakistan Engineering Council Act,
1976 (PEC Act) on the ground that his chance for promotion as Executive
Engineer BS-18 was diminished for the reason that said notification
provided 13% promotion quota to Diploma holders and 7% promotion
quota to B.Tech (Hons.) Degree holders for the post of Executive Engineer
BS-18. This Court held that it is exclusively within the domain of the
Government to decide whether a particular qualification will be
considered sufficient for promotion from a particular Grade to a higher
Grade and it is also within the domain of the Government to change the
above policy from time to time as nobody can claim any vested right in
the policy. Though the petition was dismissed but with a note of caution
that Government shall not allow or permit any person to perform
professional engineering work as defined in the PEC Act, who does not
possess accredited engineering qualification from the accredited
engineering institution and his name is not registered as a registered
engineer or professional engineer under the PEC Act. The judgment in
the Maula Bux Shaikh’s case (supra) does not suggest or permit in any
way to withdraw promotion orders unceremoniously as done by CDA in
this case but the premise of the case was altogether different and does
not support the contention of CDA in this case. As a matter of fact the
above petition was dismissed with a note of caution in the larger public
interest that Government shall not allow or permit any person to perform
professional engineering work unless he possess accredited engineering
qualification and registered as engineer or professional engineer under
the PEC Act.
CP.No.3455/2020 -7-

10. In view of what has been discussed above, we are not persuaded to
take a view different from the one taken by the learned High Court.
Accordingly, this Civil Petition is dismissed and leave refused.

Chief Justice

Judge

ISLAMABAD
1st, December, 2021
Approved for reporting