' Abdul Hameed, former District Zakat Officer, Kasur has come in appeal bringing in challenge order, dated 20-5-2003 passed by Secretary Zakat and Ushr Department, Government of the Punjab, Lahore, whereby representation of the appellant for granting him pro forma.Promotion as District Zakat Officer was declined.
2. Facts gleaned. Out from the memorandum of appeal are that the appellant was appointed as Assistant in BS-10 in the Zakat and Ushr Department, Government of the Punjab on 15-7-1980.
Seniority list was issued by Respondent No.2 pertaining to the Assistants, of Zakat and. Ushr Department on'5-7-1.988, wherein the appellant was shown at Serial No. 2 of the seniority list.
Shafqat Pervaiz, Waseem Ayub and Shafaat Pervaiz were shown at Serial Nos. 13, 21 and 23 respectively.' It is stated that the appellant being at Serial No.2 of the list was not considered for promotion whereas above named persons were promoted to Grade-17. To the detriment of the appellant, simply for the reason that Shafqat Perviaz and Shafaat Pervaiz were sons of the Accounts Officer in A the office of Administrator Zakat Punjab and the other promotee was also related to the administrator. Feeling aggrieved, an application was moved to Respondent No. 1 on which favourable comments were given by the immediate superior of the appellant on 11-5-1994.
The transfer of the Department to the Federal Government and thereafter back to the Provincial Government kept the fate of his representation in limbo. It is stated that the appellant was promoted as District Zakat Officer on current charge basis on 4-12-1994 and transferred to District Pakpattan as District Zakat Officer. Later on, he was re-transferred to District Kasur where he remained posted till his retirement on reaching the age of superannuation vide order, dated 20-10- 2001. Appellant went on to narrate his grievances swing that Shafqat Pervaiz was promoted as Superintendent on 1-7-1991 and thereafter as District Zakat Officer on 21-7-1993. Similarly Shafaat Pervaiz along with Waseem Ayub were promoted as Superintendents on 18-1-1992 and later on as District Zakat Officer on 21-7-1993, which prompted the appellant to move the Secretary, Zakat and Ushr Department, Government of the Punjab once again on 15-9-2001 before the date of his retirement with the supplication that his promotion on current charge basis as District Zakat Officer having taken place on 19-5-1991, be regularized. Administrator, Zakat and Ushr Department, Punjab arraigned, as Respondent No.2, on the application of the appellant made an observation on 20-10- 2001 that promotion case of the appellant be considered in the Departmental Promotion Committee. It is stated that similar endorsement was made in the Service Book of the appellant.
Meeting of the Departmental Promotion Committee took place on 30-9-2001, however, case of the appellant was not considered for want of advice of the Regulation Wing, S&GA Department and nceremoniously, name of the appellant was dropped for consideration by the promotion committee, relying upon the fresh policy enunciated by the Government for pro forma promotion policy, dated 19-4-2003. Thereafter, the order, dated 20-5-2003 was passed which has now been impugned. Finally, yet another representation of the appellant was turned down on 30-10-2003.
3. Learned counsel for the appellant contended that appellant's case was pending since 1991 for promotion and being the senior-most officer vide seniority list, a vested right was created in him by law for being considered according to his eligibility and purposely to deprive the appellant of the fruits of promotion, his case was kept pending which has caused him irreparable loss and the impugned order required reversal, especially when three juniors to the appellant were promoted as a result of nepotism. Learned District Attorney on the other hand opposed the relief prayed for.
4. I have heard the respective counsel at length and perused the record.
5. To begin with the final seniority, list of Assistants of Punjab Zakat and Ushr Department, as, it stood on 5-7-1988, shows seniority assigned to the appellant at Serial No.2, whereas Shafqat Pervaiz figures at Serial. No.13 having entered the Department on 14-4-1983, appellant joined the Department as Assistant on 8-10-1980. A representation of the appellant, dated 30-4-1984 addressed to the Chief. Administrator, Zakat and Ushi Department was endorsed by District Zakat Officer, Government of the Punjab, Kasur to .The effect that appellant was an B extremely honest and hardworking person with qualities of head and heart. There was no complaint against him and he strongly recommended his promotion. The Chairman, District Zakat and Ushr Committee, Kasur also gave similar remarks. After the promotion of the appellant on current charge basis as District Zakat Officer on 4-12-1996, a ray Of hope was created in his favour that in due course, his appointment would be regularized, but having discerned that the light at the end of the tunnel was extinguished for him, he vociferously renewed his supplication to the Secretary, Zakat and Ushr Department before his. Retirement on 10-5-2001 and 15-9-2001, but to his misery his mental agitation continued as nothing was done till 20-10-2001, when an order of retirement was presented to him. However, assurance was given in the same order that his case for promotion will be considered after the meeting of the Departmental Promotion Committee. The committee did convene itself, but passed the following observations:-- "The case of Haji Abdul Hameed, Ex-Assistant, which is placed at Sr. No.1 in the working Paper, the committee did not consider it for pro forma promotion for want of advice from the Regulation Wing of S&GAD whether pro forma promotion can be granted with retrospective effect or otherwise."
' Once again, the appellant was pushed hard from the precipice till his fate Was sealed by the impugned order, dated 20-5-2003 informing him that the Government regrets to grant him pro forma promotion as the S&GA Department vide their view policy, dated 19-4-2003 has decided not to grant pro forma promotion to retired officials. The comments prepare& by the Zakat and Ushr Department for the advice of the .S&GA Department, Government of the Punjab makes an interesting reading, It is stated that the appellant was the senior-most Assistant of the Department and the post of District Zakat Officer was also vacani against the promotion quota during the period when he was working as District, Zakat Officer on current charge basis, and since the Departmental Promotion Committee could not be convened during, this period, appellant retired from service on 7-10-2001, but well realizing that gross injustice was done to him, it was mentioned in the retirement order, dated 20-10-2001 that his promotion case will be considered after the meeting of the Departmental Promotion Committee. Once reneging on its promise, the bepartmental Promotion Committee, did not consider the case of the appellant on the lame pretext that the Regulation Wing of S&GA Department did not advice whether pro forma promotion can be granted to the appellant with retrospective effect. It is strange that having not considered him for promotion as already promised, the advice was still sought from the Regulation Wing of S&GA Department. In this very note, once again reference was made to the past sore facts that Shafqat Pervaiz, Shafaaq Pervaiz and Waseem Ayub were promoted as Superintendents, to District Zakat Officers, whereas appellant being the senior-most, was ignored, and that the merits of the case warranted the promotion of the appellant keeping in view his seniority position in the combined seniority list and holding of current charge appointment to the post of District Zakat Officer in BS-17 for almost four. Years. The S&GA Department, Government. Of the Punjab in its advice opined that appellant is not entitled for pro forma promotion either on availability of vacancy against he was appointed on current charge basis or on the basis of wrong promotions of Messrs Shafaat Pervaiz etc. Under the pro forma promotion policy as he was retired from service on 7-10-2001 as Assistant and never promoted as Superintendent/Assistant Secretary during his service on regular basis.
6. ' The advice of the Regulation' Wing, S&GA Department is mainly based on a fresh circular framed by the executive on 19-4-2003, Straightaway this circular can be ignored as it can never ever be given retrospective operation unless construed beneficially. Appellant retired on 7-10-2001, whereas the circular gave birth on 19-4-2003, therefore, anything contained in it is totally inapplicable to the case of the appellant. Even otherwise, appellant represented to the authority for getting pro forma promotion during his service, and it is for this reason that he was promised in the very order of his retirement that his request will be considered after the meeting of the D.P.C. A much trumpeted policy of the Government that pro forma promotion can be allowed, particularly when juniors to the incumbent are promoted, has been flouted in the present case, creating rank discrimination. The case of the appellant is bridled with so many inconsistencies on the part of the respondents that it can melt the heart of even a stern adjudicator. An, Assistant widely praised for' his honestly and hard work without any fault was. Superceded a number of times by his juniors in the matter of promotion, his case was not even considered, and finally to drive the last nail in the coffin, a policy, dated 19-4-200.3 'regarding pro forma promotion is being given a retrospective effect, which the law absolutely abhors. The fresh pro forma promotion policy propounded by the Government on 19-4-2003 being inapplicable to the case of the appellant, we have to fall back on the previous policy relating to the same subject, dated 16-10-1973. The same is reproduced as under for facility of reference: "Pro forma Promotion shall generally be granted in cases where an official whose junior has been promoted on regular basis but he was deferred due to any of the following reasons:--
(i) The seniority of two officials is in dispute. The senior official establishes his claim of seniority by obtaining a favourable decision from Government or the Punjab Service Tribunal or any other Court of law.
(ii). The official is under suspension or is facing a departmental inquiry and therefore, his pro forma is deferred. If eventually he is exonerated of the charge, he becomes entitled for pro forma promotion from the date on which he would otherwise have been promoted.
(iii) An official is considered unfit for promotion because of adverse remarks in the Character Roll.
Subsequently, he succeeds in getting the remarks expunged.
(iv) In cases where an official might be ignored for promotion due to a clerical error or incomplete service record ' of plain negligence.
(v) The Senior will have no case for pro forma promotion if junior . Was promoted on officiating, acting charge, current charge basis or other stop-gap arrangement."
' The bare reading of the old policy makes it clear without any shadow of doubt that the case of the appellant is on a much better footing than any of the contingencies enumerated in the old policy.
The Department has admitted him more than once that he was the senior-most Assistant out of the three incumbents named in the preceding paragraphs of this judgment, who were given promotion in BS-17. In such circumstances, should we wait for the time that the appellant is given a belated regular promotion and then it should be ante-dated to that of his juniors to remove disparity and do justice. I am certainly not an advocate of such policy because the regular promotion never came to the luck of the appellant. Why should he then suffer from the gross injustice done to him. The concept propounded in the correspondence, dated 16-10-2002 by S&GA Department to the Secretary, Government of the Punjab amounts to precipitation of a wrong and then claiming immunity on the basis of an omission, which by no means can be ascribed to the appellant.
7. Seniority is said to take effect in a post, service or cadre to which a civil servant is promoted from the date of regular appointment to that post as ordained by section 7(2) of the Punjab Civil Servants Act, 1974. Promotions are always granted on the basis of seniority-cumfitness formula.
The Tribunal may not have the jurisdiction to question the decision of the departmental authority determining the fitness of a person to be promoted but certainly has the competence to question the legality of an order where the eligibility of a civil servant for consideration for promotion was ignored and when juniors to the aggrieved civil servant were promoted, the Tribunal would further step in and direct for the enforcement of the legal right of such civil servant. A very terse observation of the apex Court in the case of Muhammad Rahim Khan v. The Chief Secretary, N.W.F.P. And four others, reported in 1999 SCM R 1605 is reproduced: "Pertaining to a case involving an appointment or promotion there are two essential elements namely, eligibility and fitness. The concept of eligibility implies a qualification to be appointed for promotion whereas that of fitness encompasses a person's competence to be chosen or selected for appointment or promotion. The tests for eligibility are objective and open to scrutiny by a judicial forum a Tribunal of exclusive jurisdiction namely, the Service Tribunal. Besides, if eligible to be promoted, it is the right of a person, in whom the eligibility resides, to be considered for such promotion.
' On the other hand, fitness of a person to be appointed or promoted to a particular post or grade involves a degree of Subjective evaluation on the basis of objective criteria and, as a rule, an opinion so formed, is not open to judicial scrutiny.
' However, .Even in the matters involving fitness to be appointed or promoted to a particular post or grade there has to be necessary material on the basis of which an opinion, one way or the other is to be formed. If, therefore, either all the necessary material is not put up before the authority deliberating upon the matter of appointment or promotion or obviously misleading material is put up or manifest acts of commission or omission, as regards vital data, are involved the subjective exercise may not qualify as such and may irretrievably be conditioned by objective factors, wanting in due process. Such aspects, probably, would be more akin to consideration of eligibility than of fitness and, all things being equal, be open for scrutiny before a legal forum. Where the objective factors were the working paper etc. And the recommendation of the Selection Board on such material. Another had to determine the fitness and while such determination may be beyond judicial scrutiny, the necessary steps leading to the same i.e. The objective factors may not always to be so."
8. In my considered opinion, appellant is entitled to pro forma promotion as Superintendent in BS- 16 from 1-7-1991, the date when his junior Shafqat Pervaiz was promoted to the said rank. He is also entitled to pro forma promotion as Assistant Secretary/District Zakat Officer in BS-17 from 21-7-1993 when Shafqat Pervaiz, Shafaaq Pervaiz and Waseem Ayub were promoted. Appellant is allowed pro forma promotion as Assistant Secretary/District Zakat Officer with effect from 21-7-1993. Appellant shall now be given complete financial benefits as Superintendent from .1-7-1991, and thereafter as Assistant Secretary/District Zakat Officer with effect from 21-7-1993 onwards till the date of his retirement and further pensionary benefits shall also increase accordingly. With these observations, appeal is accepted, and orders, dated 20-5-2003 and 30-10-2003 are set aside and quashed. There shall be no order as to costs.