1989 PLP (C (PLC(CS))

"I am surprised that the Health Department and S&GAID should have been sitting on this since October, 1982." However, the petitioner continued his struggle and efforts for getting his seniority fixed above the said two officers namely Dr. Sher Muhammad Khan and Dr. Khalid Saifullah Khan as his grievance throughout had been that he was entitled to be promoted before Dr. Sher Muhammad Khan was promoted who was too junior to him. The petitioner also made representation to Governor/M.L.A. Punjab through proper channel requesting that he be given promotion in Class-I service w.e.f. 8-8-1969. This was made on 22-6-1985. He also made two similar representations to the Secretary Health after he had sent summary dated 24-4-1985 to Governor the mention of which was made by him in his representations dated 22-6-1985. The Secretary Health, sent another summary to the Governor on 24-6-1985 in which he expressed the opinion that on the basis of the A.C.R. of the petitioner which was on the whole good he would not appear to qualify for compulsory retirement on completion of 25 years of service. It was proposed to the Governor for taking anyone of the following two actions:-- (i) Governor may direct the Provincial Selection Board to reconsider their cases of promotion; or (ii) He may pass such orders as deemed fit regarding promotion of the officers."

3. The two previous applications which were mentioned by the petitioner in his representation dated 22-6-1985 to Governor were, also sent alongwith this summary, which were received by the Secretary after he had submitted the earlier summary dated 24-4-1985. On this the Governor passed the following order:-- "The Governor has seen and has observed as under:-- 32. "I regret to say that such vast powers have been given to the A.I.-G. (S.B.), who seems to sit on cases at will. This we cannot and must not allow him to do. He has been most unfair to these officers by sitting on their cases for more than 18 months. Having passed certain remarks about their character and reputation, the A.I.-G. (S.B.) has not been able to substantiate the same. The Promotion Board must not accept such lapses on his part nor must he pass any remarks which he is unable to substantiate. 33. "In view of the gross injustice done to these officers and the mental agony caused to them, I should approve their promotion to Grade-18 with effect from the date on which their juniors were promoted. The matter may also please be brought before the next meeting of the Promotion Board for their information." After receipt of this order, the Chief Secretary of Punjab, conveyed this order through letter dated 16-7-1985 to the Secretary to Government of Punjab Health Department for issuance of necessary orders. In this letter the Chief Secretary stated that it was on summary submitted to the Governor on 24-4-1985 that the Governor was pleased to approve the promotion of Dr. Rafi-ud-Din Qureshi and another to BPS-18 in the general cadre w.e.f. the date on which their juniors were promoted to the said grade which was indicative of his direction that order of Governor be interpreted so as to mean that seniority to the petitioner was to be granted from the date the 20 junior officers were promoted in 1982 and acting in compliance with the said letter of the Chief Secretary, the Secretary. Health issued order dated 18-7-1985 stating that the Governor of the Punjab was pleased to approve promotion of the petitioner to Grade-18 w.e.f. 21-6-1982 i.e. the date from which their juniors were promoted. The petitioner is aggrieved of this order as also the letter dated 16-7-1985 issued by the Chief Secretary to the Secretary, Health interpreting the order of the Governor as having approved promotion of the petitioner qua those junior officers who were promoted on 21-6-1982 as mentioned in summary dated 24-4-1985. The petitioner made repeated representations but of no avail. His grievance having not been redressed therefore he has approached this Court through this Constitutional petition.

4. Learned counsel for the respondents raised the following two preliminary objections against he maintainability of the writ petition:-- (a) That the relief of promotion claimed by the petitioner is within the exclusive jurisdiction of the Service Tribunal created under the Punjab Civil Service Tribunals Act, 1974 being relatable to his terms and conditions of' service, (b) That since the petitioner is claiming seniority in Grade-18 w.e.f. 8-8-1969 and reflection of petitioner's promotion in Grade 18, 19 and 20 as the petitioner's juniors have been granted Grade 20, therefore, all those juniors who had already been promoted were necessary parties to writ petition as such the writ petition is bad for non-joinder of necessary parties.

5. The fallacy of these contention, consisted in assuming that the petitioner's claim for promotion to Grade-18 and higher grades is to be granted after adjudication by this Court its a relief whereas the petitioner's case is that he had already been granted that relief by the Governor through order dated 8-7-1985 on the administrative side and he seeks only a direction for implementation of the said order of Governor. The objections therefore arc absolutely misconceived and cannot be entertained. The petitioner has already retired from service and the effect of the relief in this writ petition if granted to him technically would be a mere formal matter of making entries in the record and granting him consequential benefits and as such it does not have the implication of disturbing the seniority of anyone in service. This is apart from the I fact that with respect to matters relating to promotion of civil servants the jurisdiction of the Service Tribunal has been ousted under the Service Tribunals Act 1974 therefore this subject could be adjudicated upon in Constitutional Jurisdiction of this Court.

6. Reverting to the merits of the case, it may be pointed out that from the numerous representations made by the petitioner to the departmental authorities from the very start and the correspondence which took place in pursuance thereto, it is manifest that his case was: (a) That the condition of passing D.P.H. for further promotion to Grade-18 could not be made applicable to his case inasmuch as his original appointment was made at the time when this condition was not in existence therefore the amendment of the rules prescribing this condition could not operate adversely against the rights of the petitioner under the un-amended rules and his promotion could not be withheld for want of D.P.H. (b) That even if the condition of passing D.P.H. was applicable to the petitioner's case, he was not at fault in not passing the said examination at the relevant time i.e. 8-8-1909 when Dr. Sher Muhammad Khan junior to him was promoted to Grade-18 after doing D.P.H. as the petitioner was not sent for passing the said examination whereas his said junior was sent for that purpose. There is nothing in all these representations that the petitioner ever made any grievance against promotion of those 20 junior officers who were promoted on 21-6-1982 as a result of approval by Departmental Selection Board. He never abandoned his claim that he was entitled to be promoted retrospectively from the date when his juniors on 8-8-1969/26-5-1971 were promoted. Keeping in view this background of the case set up by the petitioner, now I proceed to examine whether the department allowed his case as such to be considered by the Governor. In the summary dated 24-4-1985 a photo copy of which has been placed on the record it is explainably clear that Secretary, Health Government of Punjab discussed the case of promotions of those 20 junior officers which were made in the year 1982 and the case of the petitioner was discussed with reference to those promotions giving an impression as if the petitioner was seeking retrospective promotion from the date when those 20 junior officers were promoted. There is even no remotest reference to the case of the petitioner as was presented by him to the department from which it is demonstrably clear that the case of the petitioner and the grievance highlighted by him was never placed before the Governor in all its bearing as a consequence thereof there could not be any application of mind by the Governor to the grievance of the petitioner when he passed orders on the summary dated 24-4-1985 as noted above. From the narration of facts given in the earlier part of the judgment it is also explicitably clear that the department has been trying to represent to the Governor that the petitioner was a corrupt officer according to reports of A.I.G.(S.B.) and that he was not fit for promotion. When the Governor ordered for disciplinary proceedings against the petitioner, the department found that there r was no material to support those allegations therefore the idea to take disciplinary action against the petitioner was abandoned. The department found that it was not possible to take action against the petitioner as ordered by the Governor on the summary dated 24-4-1985 another summary was sent on 24-6-1985. In this summary also the grievance of the petitioner was not highlighted as made out by him in his representations. However, his two representations stated to have been made by him after summary dated 24-4-1985 had been submitted, were sent with the said summary as a part thereof. The representation made by petitioner directly to the Governor on 22-6-1985 was also with the Governor when he was dealing with the disposal of summary dated 24-6-1985. In this summary the following two proposals were made by the department to the Governor for soliciting his orders in the matter:-- (i) Governor may direct the Provincial Selection Board to reconsider their cases of promotion; or (ii) He may, pass such orders as deemed fit regarding promotion of the officers.' When the Governor passed order on this summary on 8-7-1985 he, therefore, had before him the said two representations of the petitioner and the third representation dated 22-6-1985 in which he had clearly put his case beyond any ambiguity that the grievance which he wanted to be redressed was that he was wronged by not giving him promotion from the date his junior officers on 8-8-1969/26-5-1971 were promoted. In those representations no claim was made by the petitioner that retrospective promotion be given to him from 1982 when another batch of 20 junior officers was promoted. The Governor passed tile order under proposal No. (ii). Had he any doubt about the fitness or otherwise of the petitioner for promotion or that he was to be given promotion from 21-6-1982, the Governor would have passed the order under proposal No. (i). The said order of Governor is clearly indicative of the fact that he expressed his displeasure on the conduct of A.I.-G.(S.B.) who could not establish the allegations of corruption against the petitioner and the Departmental Selection Board. Had the case of the petitioner been intended to be bracketed with the 20 junior officers considered for promotion by the Selection Board in 1982, the Governor would have acted under proposal No. (ii) that the case of the petitioner be again referred to Selection Board for reconsideration. It is manifest from the order that Governor expressed his clear intention to compensate the petitioner for the mental agony through which he had passed as also to do full justice to him. The order was passed on the consideration of representation made by the petitioner which were placed before the Governor, therefore, as discussed above it can safely be concluded that the petitioner was granted relief as claimed by him in the said representation i.e. promotion from 8-8-1969 26-5-1971.

7. On receipt of order of Governor dated 8-7-1985 the Chief Secretary, Government of Punjab conveyed the same to the Secretary Health Government of Punjab through letter dated 16-7-1985. In this letter Secretary, Health was conveyed that Governor had approved promotion of the petitioner on the basis of summary submitted to Governor on 24-4-1985 and therefore, he was requested to issue necessary orders in respect of promotion of the petitioner alongwith another officer Dr. Abdul Ghaffar whose case was also being dealt with simultaneously Since in the summary dated 24-4-1985 the case of promotion of another batch of 20 junior officers was mentioned therefore, the Secretary, Health in compliance with the said letter of Chief Secretary issued an order on 18-7-1985 saying that the Governor of the Punjab was pleased to approve his promotion w.e.f. 21-6-1982. Neither letter dated 16-7-1985 written by the Chief Secretary nor the order dated 18-7-1985 issued by the Secretary constitutes implementation of the order dated 8-7-1985 passed by the Governor. The Chief Secretary erroneously assumed as if the Governor considered the case of the petitioner with reference to summary dated 24-4-1985 and the 20 junior officers promoted in the year 1982. In view of what has been discussed above, it is plainly clear that the Governor as a matter of fact passed the order redressing the grievance of the petitioner as presented by him in his representations made to the department after 24-4-1985 which were sent with the summary dated 24-6-1985 and his own representation directly made to Governor on 22-6-1985 and the petitioner was given promotion retrospectively/proforma from the date when those two junior officers mentioned therein i.e. Dr. Sher Muhammad Khan and Dr. Khalid Saifullah Khan were promoted on 8-8-1969/26-5-1971. There could be no two opinions about this conclusion. The assumption that the promotion retrospectively was ordered by the Governor on the summary dated 24-4-1985 was wholly un-warranted which' has resulted in depriving the petitioner what was granted to him by the Governor and needless to say that no subordinate officer of the highest rank in the Government may be, the Chief Secretary, could decline to give full effect to the order of Governor or import m it something which was not incorporated therein.

8. Faced with this situation, learned counsel for respondents maintained that since passing of D.P.H. was a-condition precedent for promotion to Grade 18 therefore the Governor shall be deemed to have ordered retrospective promotion of the petitioner from the date following the date when the petitioner passed D.P.H. and not from the period prior thereto as no power was vested in the Governor to do away with the said condition in respect of any officer. The argument has little merit and I may not pause to give it any serious consideration. Suffice it to say that the grievance of the petitioner was that he was deprived of t opportunity to do D.P.H. due to fault of the authority when officer, junior to him were sent for D.P.H. It was not disputed by the learned counsel for the respondents that the petitioner or for that matter any officer could take examination of D.P.H. unless he was detailed by the department. This grievance was redressed by the Governor and it was intended that injustice done to the petitioner was to be remedied. Additionally the Governor had ample powers at his command to relax the said condition of doing D.P.H., in case of an individual officer, under section 22 of the Punjab Civil Servants Act, 1974 read with Rule 15 of the West Pakistan Health Service (Class-I) Rules, 1969 which are reproduced for facility of reference:-- Section 22 "Saving. Nothing in this Act or in any rule shall be construed, to limit or abridge the power of the Governor to deal with the case of any civil servant in such matter as may appear to him to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule." Rule

15. Power of Governor to safeguard rights of Government servants:--Whenever in the application of these rules, the terms and conditions of service of any person serving in connection with the affairs of the Province of West Pakistan as guaranteed by any law for the time being in force, are likely to be adversely affected, the Governor of West Pakistan shall make appropriate orders to safeguard the constitutional and legal rights of such person."

9. Having held that the petitioner was granted promotion from 8-8-1969/26-5-1971 when two officers junior to him i.e. Dr. Sher Muhammad Khan and Dr. Khalid Saifullah Khan were promoted therefore the letter dated 16-7-1985 written by Chief Secretary and the impugned order passed in pursuance thereto by Secretary Health dated 18-7-1985 did not reflect the orders of the Governor as it was based on erroneous interpretation of the order of the Governor as if he approved his promotion with effect from the date the 20 junior officers were promoted in 1982, as such the respondents failed to implement the order of the Governor dated 8-7-1985 in not giving him seniority from 8-8-1969/26-5-1971 and consequential benefits regarding seniority; in Higher grades etc.

10. The writ petition or the foregoing reasons succeeds. It is accepted with costs. The letter dated 16-7-1985 issued by the Chief Secretary and order dated 18-7-1985 passed by Secretary Health are hereby declared to have been issued and passed as without lawful authority and of no legal effect on the rights of the petitioner and are hereby quashed. The respondents are directed to issue necessary orders in implementation of order passed by Governor dated 8-7-1985 for giving promotion to the petitioner w.e.f. 8-8-1969/26-5-1971 when two officers junior to him i.e. Dr. Sher Muhammad Khan and Dr. Khalid Saifullah Khan were promoted as Civil Surgeon/D.H.O. and as a consequence thereof reflecting petitioner's promotion in Grades 18, 19 and 20 accordingly as the officers junior to the petitioner have been granted Grade-20 and all the benefits including emoluments, other allowances as permissible under the law and the rules as also benefits of pension. A.A./M-1398/L Petition accepted.