' Capt. (Retd.) Dr. Malik Javed Tariq, Additional Medical Superintendent, Punjab Institute of Mental Health has come in appeal bringing in challenge order dated 12-8-1996 and other order dated 2- 12-2003 whereby respondents Nos.3 to 8 were promoted to BS-19 as Principals, Paramedical School and finally order dated 21-5-2004 when the prayer of the appellant to grant him pro forma promotion in BS-19 with effect from 12-8-1996 was declined, as he had acquired Diploma in Public Health after amendment in the relevant service rules.
2. Learned counsel for the appellant contended that the appellant was appointed as Medical Officer in BS-17 on regularvbasis in the Health Department on 3-12-1983, whereas respondents 3 to 8 joined service in BS-17 in the general cadre of the Government of the Punjab, Health Department after the appellant. Appellant, it is submitted, was promoted as Senior Medical Officer in BS-18 on 7- 9-1989 with effect from 1-7-1986, the promotion of the appellant to BS-19 governed by the Punjab Health Department (General/Specialist and Miscellaneous Posts) Rules, 1981 was to be made on seniority-cum-fitness basis from amongst the Senior Medical Officers on equivalent posts with 12 years service in BS-17 and above. Learned counsel contended that with the requisite qualification of Diploma in Public Health/DMCH/DHA/M.Sc. Appellant having obtained the qualification of Diploma in Public Health (DPH) in the annual examination, 1993 held in October 1994, and result conveyed on 8-1-1996, was fully eligible for promotion when the Departmental Promotion Committee took up the case for consideration of promotion of respondent No. 3 in BS-19 on 29-5- 1996, and promoted them on 11-8-1996, but the appellant, without any good reason, was left out although he was much above in the seniority list of doctors in BS-18 being at No.68 whereas the other respondents were assigned seniority below to that of the appellant. It was pleaded with vehemence that Dr. Waqar Nabi Bajwa, respondent No.3, who was 526 steps junior to the appellant, was promoted to BS-19 on regular basis vide order dated 11-8-1996, now impugned.
3. It was contended with vehemence that at the time of deliberation of the D.P.C., he was not even considered for promotion to the deteriment of his vested right, there being nothing adverse on record against him. It was further stated that a representation dated 11-3-1996 was made to the Secretary Health, Government of the Punjab in anticipation of promoting Senior Medical Officers from BS-18 to BS-19, praying that his case be put up before Provincial Selection Board for consideration. But without any good reason, his supplication fell on deaf ears and he was not considered when respondent No.3 was promoted. Later on respondents Nos.4 to 8, Junior to the appellant, as reflected in the seniority list of BS-18 officers, were granted pro forma promotion in BS-19 vide order dated 2-12-2003, once again omitting to consider the name of the appellant. Since the order was not circulated to him, he came to know about it on 20-5-2004, and made a representation to respondent No.2 on the same day, which was rejected on 21-5-2004, the order now impugned, on the ground, that all the doctors of general cadre, along with respondent No.3, who had acquired relevant qualification of D.P.H. Prior to the amendment in the, Punjab Health Department (General/Specialist and Miscellaneous Posts) Rule's, 1981, were granted pro forma promotion to PS-19, and since the appellant acquired diploma in Public Health (D.P.H) after the amendment in the service rules, lost his rights of promotion in BS-19 with effect from 12-8-1996, the date, on which respondents Nos.4 to 8 were allowed promotion. Learned counsel for the appellant in the end stated that the date when the D.P.C. Considered the case of respondent No.3 for promotion to BS-19 on 29-5-1996, he was equipped with the requisite qualification of D.P.H., as such, failing to consider him for promotion along with respondent No.3 on 11-8-1996 and subsequently when respondent No.4 to 8 were allowed pro forma promotion on 2-12-2003, a grave illegality was committed which caused irreparable miscarriage of justice, therefore his promotion to BS-19 allowed to him on 6-9-2001 be ante- dated to 12-8-1996 under the pro forma promotion policy of 16-10-1973 read with rule 14 of the Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974, Learned District Attorney on the other hand found it difficult to refute the weighty arguments of the learned counsel for the appellant.
4. Respondents Nos. 3 to 6 and 8 were proceeded ex parte on 27-7-2004 as despite service through registered post, they did not put in appearance. On the said date, respondent No.7 appeared and sought time to submit comments, which he was allowed to do so by way of last opportunity, but today, he was also absent, although very much aware of the date of hearing Respondent No.7, is also proceeded ex parte.
5. I have heard the arguments at length and perused the record.
6. It has not been denied in the comments submitted by the Secretary, Health Department that appellant ranked senior in BS-18 to respondents Nos.3 to 8. It was further admitted that there was nothing adverse against the appellant in his service record or by way of penalty A imposed in any disciplinary proceedings. It was also not disputed that appellant was not considered for promotion to BS-19 along with the respondents. All that was said was that respondent No.3 and then respondents Nos.4 to 8 were granted pro forma promotion with effect from 12-8-1996 because they qualified Diploma in Public Health examination or equivalent prior to the amendment in Punjab Health Department (General/Specialist and Miscellaneous Posts) Rules, 1981, whereas the appellant did not fulfil this condition although it was admitted that the appellant successfully passed the D.P.H. Examination when his result was announced on 8-1-1996, further admitting that the date of announcement of the result is considered to be the material date. Once again, in reply to the grounds of appeal in para (1), the respondents have stated as under:-- "Denied. The order dated 21-5-2004 is consistent with the provision of rule 14 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 as the appellant obtained the minimum length of qualification and experience for his promotion to the rank of Additional Principal Medical Officer (BS-19) on 8-1-1996 subsequent to which he was immediately promoted."
' The departmental representative could not make me understand the logic as to why the name of the appellant was not considered for promotion when respondent No. 3 was promoted in BS-19 on 11-8-1996 or on 2-12-2003 when respondents Nos.4 to 8 were granted pro forma promotion- with effect from 12-8-1996, he repeated again and again that the case of the respondents was materially different as they had obtained Diploma in Public Health (D.P.H.) prior to the amendment of the Service Rules, 1981, whereas the appellant obtained it subsequently. It any be mentioned that subsequent to the amendment made in the year 1994-95, condition of possessing the qualification of D.P.H. Was erased. What we have to see is that on the date when the Departmental/Provincial Selection Committee convened itself for deliberating the case of promotion of respondent No.3 to be precise on 29-5-1996, was the appellant possessing the qualification of D.P.H., the answer is in the affirmative, as observed, on 8-1-1996, he was declared successful passing the examination of D.P.H. This was the material date which had to be taken into consideration. Surprisingly appellant, admittedly senior to the respondents having been inducted in service earlier as well as depicted in the seniority list of Senior Medical Officers in BS-18, there was no earthly reason in failing to consider the appellant for promotion along with respondent No.3 by the D.P.C. The cosmetic stand now taken for failing to consider the appellant for promotion on 11-8-1996 would not in anyway create hindrance in the way of the appellant to seek his promotion in BS-19 on the date when the respondents were promoted.
7. The upshot of the discussion is that the appeal of the appellant is accepted, order dated 21-5- 2004 passed by respondent No.2 is set aside. Appellant shall now be considered for promotion to BS-19 with effect from 12-8-1996 by the Provincial Selection Board in the light of the judgment in instant appeal forthwith. There shall be no order as to costs.