1991 PLP 798 (SCMR)

As regards appellant's claim to pro forma promotion as Horticulturist, it may be mentioned that one (late Muhammad Yousuf), an Assistant Horticulturist, was promoted as Horticulturist with effect from 26‑6‑1973. Appellant's case for promotion as Horticulturist was to be considered according to the letter of Provincial Government in the Service and General Administration Department dated 30‑1‑1974 "only after he completes successfully the probationary period and until then he may continue as such against the post of Horticulturist in his own grade and pay". It appears that in its meetings held on 28‑5‑1979 and 16‑8‑1979, the Departmental Selection Board considered appellant's case for promotion as Horticulturist but deferred it until the decision was rendered in a criminal case against the appellant which was pending at that time. The relevant extract of the minutes of the meeting held on 28‑5‑1973 reads as under:‑‑ Item No.I

1. PROPOSAL REGARDING FILLING IN THE 2 POSTS OF HORTICULTURIST IN NPS‑18 IN THE AGRICULTURE DEPARTMENT IN RESEARCH WING. There are two posts of Horticulturist in NPS‑18 (for the Fruit Development Project) ....... The Secretary, S & GAD pointed out that Mr. Abdul Haq is involved in an embezzlement case and Martial Law Administrator Zone "D" has granted sanction for his prosecution. In these circumstances he could not be considered for promotion till such time as the charges against him have been decided. As regards Dr. Muhammad Saeed (S.No.2) it was pointed out he was an ad hoc appointee and his appointment in Grade‑17 had not yet been regularized by the Balochistan Public Service Commission." The minutes of the second meeting held on 16‑8‑1979 read as under:‑‑ CASE OF MR ABDUL HAO ASSISTANT HORTICULTURIST, FOR PROMOTION TO GRADE‑

18. The case was also considered in the last meeting of the Board. The F.I.R. of the case which had been received from the A.C.E. was placed before the Selection Board and it was pointed out that the name of Mr. Abdul Haq was not mentioned in it. It was, however, observed that as he had been challaned in the Court of Law and his case had once been considered by the Board, which had made a decision, it could not be' considered again before the final decision of the case." Finally, however, after appellant's acquittal in the criminal case, he was promoted td the post of Horticulturist with effect from 25‑5‑1982. After his promotion as above, he made a representation to the Provincial Government for pro forma promotion as Horticulturist with effect from 28‑5‑1979, the date when his case had been deferred by the Selection Board on account of the pendency of the case against him. He claimed the aforesaid benefit on the basis of the policy decision of the former Government of West Pakistan contained in Notification No. SO‑XII(S&GAD)‑2‑145/60, dated 4‑12‑1962 and also policy decision of the Government of Balochistan dated 17‑5‑1981. Appellant's claim having been rejected by the department, and his departmental remedy by way of review also having failed, he then filed an appeal before the Service Tribunal which too was dismissed as stated earlier. The main reason that prevailed with the Service Tribunal in dismissing appellant's appeal may be reproduced hereunder:‑‑ "The learned counsel for the respondent pointed out that it was not a fit case for pro forma promotion basically for the reason that promotion is not a matter of right of a civil servant who has not been superseded by any one. In support of this contention he produced a seniority list dated 3‑10‑1983, as the latest published by the Agriculture Department showing the name of the appellant at his proper place at serial No.13. The learned counsel for the appellant as also the appellant himself accepted this position and admitted that no one junior to, him in his service line was promoted as a Horticulturist m Grade‑18, in super-session to him. We agree with the learned counsel for the defence that the case relates to the question of promotion where neither any supersession was involved on any occasion nor the law guarantees promotion to any civil servant as of right, nor actually the appellant was ever promoted but was holding the current charge of the duty of Horticulturist, hence the appellant is not at all aggrieved on this count. We, therefore, find no justification to accede to the prayer of the appellant to declare that the appellant was entitled to pro forma promotion or that he should be given retrospective promotion with full financial benefits of higher post in Grade‑

18. His appeal is dismissed with no order as to costs." Leave to appeal was granted by this Court in order to examine the submissions advanced by the learned counsel for appellant that the Service Tribunal has completely ignored the policy decision of Government of West Pakistan on the subject of pro forma promotion taken as far back as on 4‑12‑1962, and also the policy decision of Government of Balochistan dated 17‑5‑1981 which was later reiterated in the circular dated 8‑9‑1982 whereby it was decided that if a Government servant would have been otherwise promoted, but for any proceedings against him, then after his honourable acquittal, he could be given pro forma promotion retrospectively. It was further urged that the reasons which prevailed with the department in not granting pro forma promotion, namely, that he was not eligible for promotion to Grade‑18 on 28‑5‑1979, because he was an ad hoc employee, and secondly that no officer junior to him had been promoted from an earlier date, are untentable for appellant's appointment as Assistant Horticulturist had been regularised with retrospective effect from 6‑9‑1973, and he was, therefore, entitled to promotion even if no officer junior to him was promoted. At the hearing today, Mr. M. Aslam Chishti learned counsel for appellant took us through the record before us in support of the pleas on which leave to appeal was granted, whereas Mr. M. Nawaz Ahmed learned counsel for respondent urged that appellant's case is not one of claim to promotion on pro forma basis, but to promotion on regular basis, as admittedly no super-session of the appellant by any one junior to him is involved, and, therefore the view of the Service Tribunal is correct that the appellant cannot claim promotion as of right, and moreover he was holding the current charge of the office of Horticulturist, and not on substantial basis so as to be promoted to that post for the duration of that period. After having gone through the record of the case we find that the Selection Board in both the meetings held on 28‑5‑1979 and 29‑8‑1979 did not, in terms of paragraph 2 of the "Policy for grant of pro forma Promotion" laid down under letter No.S.O.lti‑6(47)(R)/S&GAD‑75, dated 17‑5‑1981 of Secretary to the Government of Balochistan, Services and General Administration Department, Quetta, held that appellant, "on the basis of his service record and performance" would have been promoted on the due date, but for the circumstance "that the criminal case against him had not yet been decided". We are also not persuaded by anything on record as to how in 1979 appellant could even be considered for promotion to the post of Horticulturist in Grade‑18, when in the matter of time, he was not even confirmed in the post of Assistant Horticulturist in the lower grade. We, therefore, find no substance in the pleas raised in support of the appeal. It is accordingly dismissed. In the circumstances the parties are left to bear their own costs. A.A./A‑812/S Appeal dismissed.