1999SCMR2364 (PLP)

AJMAL MIAN, C.J.

This is a petition for leave to appeal against the judgment dated 7-6-1997 of the Federal Service Tribunal (hereinafter referred to as the Tribunal) passed in Appeal No. 129(L) of 1997 filed by respondent No.4 Dr. Nauman Ahmad praying for the following relief: "The impugned order dated 26-11-1996 may kindly be declared illegal,' be set aside. The respondents No. l and 2 may kindly be directed to place the minutes/recommendations of the Departmental Selection/Promotion Board before the Competent Authority for getting his approval without causing further delay, and after obtaining the approval issue the Notification in this regard giving its effect from the date when the post of B-20 (Professor of Anesthesiology) became available. The appointment of respondent No.4 be declared irregular on the basis of his ineligibility as well as usurping the appellant's lawful rights. The appeal may kindly be accepted in the above terms with all consequential benefits." The above appeal was allowed by the Tribunal as follows: "The respondent department has conceded in para.2 of their comments that in view of the unanimous recommendation of D.P.C. there is nothing left except the formal approval and the issuance of notification which is probably be finalised shortly. This according to our understanding means that the department is going to regularize the services of the appellant in B-20 from 22-4-1996 i.e. the date his name was recommended for promotion by the Committee. When passing the formal order about the regularization of services of the appellant, it should be kept in mind."

2. The brief facts are that respondent No.4 was appointed as Assistant Professor (B-18) of Anesthesia on 1-11-1986. He was promoted as Assistant Professor (B-19) on regular basis on 1-11-1990. He was appointed on acting charge basis as Professor of Anesthesia on 11-10-1993 in B-20. The present petitioner was directly recruited as Assistant Professor. It appears that the Departmental Section Committee which consisted of five members including Secretary, Cabinet Division, Islamabad examined respondent No.4's case for promotion in B-20 as Professor of Anesthesiology and recommended him for promotion on 22-4-1996. It appears that respondent No.l did not act upon the above recommendation. It seems that in June/July, 1996, two posts in B-20 of Professor of Anesthesia were created in the Institute. The petitioner applied for one of the above posts through the Principal, King Edward Medical College and Mayo Hospital, Lahore. He was selected on 5-10-1996 as Professor of Anesthesiology (B-20) by the Departmental Promotion and Selection Committee. It further seems that on 26-11-1996 the appointments of respondent No. 4 and four other doctors in B-20 as Professors on acting charge basis were cancelled, in respect of which respondent No.4 filed Constitution Petition No.21942 of 1994 in the Lahore High Court and obtained a stay order. He also filed above appeal before the Tribunal for the above relief. The Tribunal allowed the above appeal in the above terms. The petitioner being aggrieved by the above judgment has filed the present petition for leave to appeal.

3. In support of the above petition Mr. Muhammad Sair Ali, learned counsel for the petitioner, has vehemently contended that the Tribunal by passing the impugned order had adversely affected, the petitioner, inasmuch as the petitioner would be made junior to respondent No.4, though the above appeal of respondent No.4 was not competent. His further submission was that the recommendation of the Department Promotion Committee dated 22-4-1996 was not accepted by the Board of Governors of the hospital for the reason that certain inquiries were initiated against respondent No.4.

4. It seems to be an admitted position that when the Departmental Promotion Committee recommended respondent No.4 on 22-4-1996 for promotion in B-20 no inquiry was pending against him. It is also an admitted position that the post against which respondent No.4 was recommended for promotion was reserved for the quota of promotion. The Tribunal found that the Governing Body of the College without any basis did not implement the recommendation of the Departmental Promotion Committee after having concluded as above and keeping in view the concession made by the department before it, the Tribunal passed the above-quoted operative portion of the judgment.

5. In our view no exception can be taken to the above order. We may observe that an employee cannot be denied promotion on the basis of an alleged inquiry which may be founded on an alleged act committed subsequent to the recommendation of the Departmental Promotion Committee for his promotion. In the instant case the alleged misconduct committed by respondent No.4 was that he misbehaved in the meeting of Board of Governors (which allegation he has denied before us). Be that as it may, the question at issue is, as to whether the above quoted impugned portion of the impugned judgment warrants interference by this Court. We have already pointed out hereinabove that no exception can be taken to the same.

6. Leave to appeal is refused and the petition stands dismissed. H.B.T./W-32/S Petition dismissed.