1987 PLP 1735 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of Baluchistan Service Tribunal dated 14‑9‑1986 dismissing do appeal filed by petitioner whereby he claimed that he is entitled to pro forma, promotion as Horticulturist, in Grade‑18, with retrospective effect from 28‑5‑1979 with full financial benefits of the higher post. Facts briefly stated are that petitioner was appointed as Agriculture Assistant on 25‑5‑1959, was promoted to the post afterwards designated as Assistant Horticulturist in 1960 and was regularised in that post w.e.f. 9‑6‑1973 by the notification dated 24‑3‑1981. During this period he was allowed to hold current charge of the post of Horticulturist from 23‑11‑1973 and was formally promoted to that post w.e.f. 25‑5‑1982 by the notification dated 12‑8‑1982. As regards petitioner's claim to pro forma promotion as Horticulturist, it is relevant to mention that one (late) Mohammad Yousuf an assistant Horiculturist was promoted as Horticulturist w.e.f. 26‑6‑1973. Petitioner's case for promotion as Horticulturist was to be considered according to the letter of the 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". The Departmental Selection Board in its meetings held on 28‑5‑1979 and 16‑8‑1979 considered petitioner's case for promotion as Horticulturist but deferred it until the decision was given in a criminal case against the petitioner which was pending at that time. Finally, however, after petitioner's acquittal in the crime case he was promoted to the post of Horticulturist w.e.f. 15‑5‑1982. after petitioner was promoted he made a representation to the Provincial Government for pro forma promotion as Horticulturist w.e.f. 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 policy decision of the former Government of West Pakistan contained in notification No. SO‑SII (S&GAD)‑2‑145/60, dated 4‑12‑1962 and also policy decision of the Government of Baluchistan dated 17‑5‑1978. Petitioner's claim having been rejected by the Department and his departmental remedy by way of review having failed he then filed the appeal before the Service Tribunal which too was dismissed, as stated earlier. The main reason which prevailed with the Service Tribunal in dismissing petitioner'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 in Grade‑18 in supersession 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." Mr. Mohammad Aslam Chishti, learned counsel appearing in support of this petition submits 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 Baluchistan 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. Learned counsel further submits that the Service Tribunal has also erred in holding that petitioner's case for pro forma promotion was not fit for the reason that promotion is not a matter of right of a civil servant. Learned counsel also referred to 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. Learned counsel submitted that both these reasons are untenable for, petitioner's appointment as Assistant Horticulturist had been regularised with retrospective effect from 6‑9‑1963, and he was therefore entitled to promotion in view of the recommendation made by the Departmental Committee itself. These points and the others raised in support of the petition deserve consideration. We therefore grant leave to appeal and allow the petition. Appeal will be heard on the present record but it is open to the parties to file additional documents, if any. S.Q. /A‑89/S. Petition allowed.