2007 PLP (C (PLC(CS))

JUSTICE (RETD.) RUSTAM ALI MALIK (CHAIRMAN).

According to the memorandum of appeal, the appellant joined Health Department, Government of the Punjab as Medical Officer (BS-17) in April, 1979 and he was promoted as Senior Medical Officer BS-18 on regular basis in the year 1984. Vide order/notification dated 7-3-1994, General Cadre of Health Department, Government of the Punjab was re-organized under the 4-tier Structure and certain posts of Doctors of General Cadre were upgraded by the Governor of Punjab and it was observed in the said order/notification that promotions to the upgraded posts will be made strictly in accordance with the Service Rules which will be got amended through the Services and General Administration Department. Thereafter, the Service Rules of Health Department were amended vide Notification dated 21-11-1994 and certain permanent posts of Additional Principal Medical Officers (BS-19) were notified and subsequently a Notification dated 20-8-1995 was also issued by the Government of the Punjab in that respect and according to which five posts of A.P.M.Os. (BS-19) were shown available in the District Headquarter Hospital, Jhang. However, the departmental authorities delayed the matter of promotions against the said vacant posts of A.P.M.Os. in BS-19 without any legal justification for a number of years and did not consider the appellant's case for promotion to the post of A.P.M.O. (BS-19) inspite of the admitted fact that he while working as Senior Medical Officer (BS-18) at District Headquarter Hospital, Jhang was fully eligible for being considered for one of the said posts. In this respect he addressed au application to the Secretary Health, Government of the Punjab in September, 1996 which was forwarded to him by the Director-General, Health Services Punjab on 16-10-1996. Ultimately the appellant and his other colleagues were considered for promotion to the posts of A.P.M.Os. (BS-19) and he was promoted as A.P.M.O. (BS-19), District Headquarter Hospital, Jhang vide order, dated 3-7-2001 with immediate effect, instead of w.e.f. 20-8-1995 i.e. the date when the posts of A.P.M.Os. (BS-19), District Headquarter Hospital, Jhang had become available for promotion and he was fully eligible for promotion against one of the said posts. But without any fault on his part, he was deprived of the promotion from the due date. Aggrieved of the said order, dated 3-7-2001, he submitted a representation dated 14-7-2001 before the next higher departmental authority which remained pending for a long time and was ultimately rejected vide order, dated 30-11-2005. Thus, he has filed the instant appeal before this Tribunal.

2. The respondents have resisted: the appeal.

3. The learned counsel for the, appellant has argued that the appellant's claim had not been properly considered by the departmental authorities and his request had been turned down in an arbitrary and mechanical manner in gross violation of section 24-A of General Clauses, Act; that even if it be assumed for a moment that there is arty rule or law which disentitles a civil servant .for being considered for pro forma promotion, even then such a rule cannot be applied with retrospective effect. In support of his contention, the learned counsel for the appellant has placed reliance on the cases titled Government of N.-W.F.P. and others v. Buner Khan and others 1985 SCMR 1158, Government of the Punjab through Secretary Education and another v. Rana Ghulam Sarwar Khan and 111 others 1997 SCMR .515 (Supreme Court of Pakistan), Manzoor Ahmad v. Senior Superintendent of Police and 2 others 2002 PLC (C.S.) 1078, Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others 1991 SCMR 2330, Water and Power Development Authority v. Irtiqa Rasool Hashmi and another 1987 SCMR 359 and Secretary to the Government of Pakistan, Ministry of Finance and others v. Muhammad Hussain Shah and. others 2005 SCMR 675 (Supreme Court of Pakistan) and has contended that the impugned order was in clear violation of requirement of section 24-A of the General Clauses Act; that even if there is any rule which disentitles a civil-servant to pro forma promotion/attic-dated promotion, the same cannot be applied with retrospective effect. He has requested that the impugned order, dated 30-11-2005 be set aside and the respondents be directed to consider the appellant for pro forma/ante-dated promotion to the post of A.P.M.O. (BS-19) w.e.f. 20-8-1995 and the order/Notification dated 3-7-2001 be ordered to be amended accordingly.

4. On the other hand, the respondents have resisted the appeal on the plea that the appellant was required to file departmental appeal before the next higher authority against the decision of the Secretary Health but he had not filed the appeal before the next higher authority so far and hence the appeal filed by him before this Tribunal is premature; that he had filed application dated 5-3-2005 before the Secretary Health for ante-dated promotion to BS-19 w.e.f. 20-8-1995, instead of 3-7-2001. The said application was time-barred, but even then it was examined on merits and was rejected after getting advice from the S&GAD; that a civil servant cannot claim pro forma promotion as of right; that pro forma promotion can in no case be granted from the date of availability of posts reserved for promotion; that the Health Department did not wilfully delay the matter of promotion of S.M.O.'s (BS-18) as A.P.M.O.'s (BS-19). In fact it was due to litigation pending before the Courts of law that the cases of promotion remained pending till 2001 and on the conclusion of litigation the matter was immediately processed and promotion orders were issued; that the Health Department had not received any representation dated 14-7-2001 of the appellant and he had in fact submitted the application dated 5-3-2005 through Executive District Officer (Health), Jhang which was .examined and rejected and he did .not file any departmental appeal before the next higher authority against the said order; that the contentions of the appellant are not based on relevant facts and law and his request is not covered, by the relevant rules of promotion/pro forma promotion and therefore, the appeal filed by him is liable to be dismissed.

5. I have carefully considered the arguments advanced from both sides.

6. The learned counsel for the appellant has submitted that even though the appellant had submitted the representation/departmental appeal before the Secretary Health instead of the next higher departmental authority it should have been forwarded by him to the next higher departmental authority in accordance with law. I fully agree with him in that respect that instead of deciding the representation, the competent authority should have forwarded the representation of the appellant to the next higher departmental authority. But as it was not done, the appellant cannot be made to suffer for the same. Even though it be assumed that any litigation was pending before different Courts of law due to which the cases of promotion of Senior Medical Officers against the available vacancies of A.P.M.Os. (BS-19) could not be taken up; even then the eligible Senior Medical Officers. should have been promoted against the available vacancies from the date of availability of said vacancies and not from any later date. The reason is that the delay in completing the process of promotions cannot be attributed to the civil servants concerned. The appellant was eligible to be considered for pro forma promotion as Additional Principal Medical Officer (BS-19) from the date when the vacancy against which he was promoted became available. He had obviously suffered in monetary terms and otherwise for a long period of time without any act or omission on his part. Evidently he cannot be made to suffer for any inaction on the part of departmental authorities.

7. In view of what has been stated above, the appeal is accepted, the impugned orders are set aside and it is directed that the case of the appellant be considered for grant of pro forma promotion from the date when the vacancy/vacancies of A.P.M.Os. had become available. H.B.T./16/PST???????????????????????????????????????????????????????????????????????? Appeal accepted.