2024 SCLR 37
Other citations: 2024 SCMR 12
[Supreme Court of Pakistan]
Present: Ijaz ul Ahsan, Jamal Khan Mandokhail and Shahid Waheed, JJ
National Bank of Pakistan through President, Karachi—Petitioner
versus
Sajjad Ali Kakakhel and another—Respondents
Civil Petition No. 370 of 2021, decided on 11th September, 2023.
(Against judgment dated 15.12.2020 of the Peshawar High Court, Peshawar passed in W.P. No. 1312-P of 2013)
Constitution of Pakistan —
— Art. 199 — Availing remedy in constitutional jurisdiction of High Court — Laches — Scope — By 2010, the respondent had been superseded, and this supersession had not been challenged within a reasonable time — The constitutional petition filed by the respondent before the High Court had suffered from laches — Furthermore, the right that the respondent had asserted and continued to assert, to be granted proforma promotion for which there was no provision in the relevant service rule, was coupled with the fact that the respondent had already retired from service and received all his benefits due to him under the law — As such, it was found that interference by the High Court in the matter at the stage it interfered was not supported either by the relevant law or by any of the rules governing the terms and conditions of employees of the petitioner/Bank — Therefore, the impugned judgment was found to be unsustainable — Consequently, the petition was converted into an appeal, and the same was allowed. [Para. No. 3]
Faisal Mahmood Ghani, Advocate Supreme Court for petitioner.
Zartaj Anwar, Advocate Supreme Court for respondent No. 1.
Date of hearing: 11th September, 2023.
ORDER
Ijaz ul Ahsan, J:—Leave to appeal is sought against a judgment of the Peshawar High Court dated 15.12.2020. Through the impugned judgment a constitutional petition filed by the Respondent No. 1 (Respondent) was allowed and it was held as follows:-
“In view of the above, we have reached at inescapable conclusion that the action of the respondent by not promoting the petitioner to the post of SVP/EVP requiring him to obtain 34 marks is based on alien consideration, therefore, we allow this writ petition and accordingly direct the respondents to convene a meeting of Departmental Promotion Board by whatever name it is known in the dispensation of the respondent and consider the case of the present petitioner for his notional promotion strictly in accordance with their rules and policy. The needful be done within three months positively from receipt of judgment of this Court.”
2. The learned counsel for the petitioner submits that in the first place, there is no provision for proforma promotion in the service rules of the petitioner/Bank. He further maintains that admittedly the respondent had been superseded in 2010, however, he did not challenge such supersession till 2013 before the High Court. He also points out that the respondent had already retired from service in 2011 and had received all his dues/pension and the commutation that was an option that he availed and had since been paid. In this view of the matter, besides all other aspects, the learned High Court lacked jurisdiction to pass the order in question and the same was without jurisdiction. The learned counsel for the respondent on the other hand although conceded before us that there was no provision for proforma promotion in service rules of the National Bank of Pakistan (NBP), submits that he had approached this Court in exercise of its powers under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973. However, this court declined to interfere leaving the petitioner to approach the appropriate forum. He, therefore, maintains that delay in approaching the High Court is condonable. We have repeatedly drawn the attention of the learned ASC for the petitioner to the main question as to how and under what law can this court pass an order directing that the respondent be granted proforma promotion, he has not been able to provide a satisfactory response which is understandable in view of the fact the service rules do not provide for proforma promotion. Even otherwise, the respondent had admittedly been superseded and such supersession remained intact till his retirement and receiving his service benefits.
3. Having heard the learned counsel for the parties and going through the record, it is clear and obvious that the respondent had been superseded in 2010 which supersession was not challenged within a reasonable time. The constitutional petition filed by the respondent before the High Court suffered from laches. Further, the right that the respondent asserted and continues to assert to be granted proforma promotion for which there is no provision in the relevant service rule. This is coupled with fact that the respondent had already retired from service and received all his benefits due to him under the law. As such, we find that interference by the High Court in the matter at the stage that it interfered was not supported either by the relevant law or by any of the rules which governs the terms and conditions of employees of the petitioner/Bank. We, therefore, find the impugned judgment to be unsustainable. Consequently, we convert this petition into appeal and allow the same. The judgment of the Peshawar High Court dated 15.12.2020 is accordingly set aside.
Appeal allowed