NUR AHMAD SHAH, MEMBER-II.- This judgment covers all the three above appeals because of similarity in the issues of facts and law involved.
2. The appellant was selected "as Assistant Professor, Pediatrics through the Sind Service Commission in July, 1983. He was promoted as Associate Professor (BS- 19) on 19-9-1987. He was cleared for promotion as Professor of Pediatrics (BS-20) in November, 1994. Because he did not have the requisite length of service in BS-18 and above, he was promoted to BS-20 on acting charge basis. His seniors Dr. S. Inkisar AN and Dr. Noor Ahmed Channa were superseded because they did not possess the academic qualification required for appointment as Professor (BS-20).
The appellant's promotion BS-20 was regularized on 29-8-1996. in the representation made to the Government the appellant requested that he should be given regular promotion as Professor either from the date he was promoted as such on acting charge basis or with effect from 28-1-1996 on completion of 12 years service. Getting no response, he agitated the matter before the Sind Service Tribunal in Appeal No.58/1997. Respondent Dr. Syed Inkisar Ali who had, in the meantime, acquired the prescribed academic qualification, was promoted to BS-20, on 29-8- 1996 the day the appellant's promotion was regularized, in the tentative seniority list issued on 13-2-1997, Dr. Syed Inkisar Ali was shown senior to the appellant against this, the appellant filed objection on the ground that the respondent having been previously superseded could not rank senior to him. He also took the matter to the Sind Service Tribunal in Appeal No 8/1999. The Health Department and the S&GAD upheld his claim and held the appellant senior to the respondent vide notification dated 23-9-1999 followed by the seniority list issued on 16-3-2000. On 31-7-2000, however, the department reversed the position without assigning reason. This gave the appellant a fresh cause of action culminating in Appeal No.415/2000. On the application made by them under Order I Rule 10 CPC read with section 5 Sind Service Tribunals Act, 1973, Dr. D.S. Akram in Appeal No. 58/1997 and 8/1999 and Dr. D.S. Akram in Appeal No. 58/1997 were made parties as ihtervenors. in their written statements, Dr. D.S. Akram states that she was promoted to BS-20 on 7-5-1995 and is, thus, senior to the appellant. Dr. Syed Inkisar Ali states that he was senior to the appellant as Assistant Professor (B-18) and Associate Professor (BS-19) and concedes that when the appellant was cleared for promotion to BS-20 on acting charge basis, he was passed over because he was awaiting the result of his MD examination and was thus, not eligible for promotion. The written statement of the remaining respondents is more or less the same.
3. Heard Mr. Khalid Javed Khan for the appellant in all the three Appeals; Mr. Manzoor Ali Khan for respondent Dr. D.S. Akram in appeal No.58/1997 and 8/1999; Mr. Sanullah Ghouri, for respondent Dr. Syed Inkisar Ai and the AAG for the official respondents. Perused the record.
4. Before commencing the arguments, the Counsel for appellant stated categorically that the appellant had no claim of seniority over Dr. D.S. Akram and he candidly admitted the appellant's being junior to her. in fact, Appeals Nos. 58/1997 and 8/1999 did not cite Dr. D.S. Akram as a respondent. She became party to these appeals as an intervenor on her own request. Since the appellant concedes that he is junior to Dr. D.S. Akram, the latter's seniority over him shall remain intact.
5. The Counsel for appellant states that the Provincial Selection Board (PSB-1) while clearing the appellant for promotion as Professor (BS-20) on acting charge basis due to lack of prescribed length of service, superseded respondent Dr. Syed Inkisar Ali who did not possess the prescribed academic qualification. The seniority list issued thereafter showed the appellant as Professor and the respondent as Associate Professor. The Counsel further argues that according to the PMDC rules, the respondent who acquired the prescribed qualification in December, 1995 has to wait for 3 years as Associate Professor before being eligible for consideration for promotion to BS-20, and that, Dr. Syed Inkisar Ali could not be considered foe promotion to BS-20 before December, 1998.
The Counsel argues that the appellant who was promoted on acting charge basis in October, 1993 should have been regularized as Professor w.e.f. October, 1996 when he completed the minimum length of service required for promotion to BS-20. He relies on PLD 2003 SC 102; 1998 PSC 1467; PLJ 1996 Tr. C. (Services) 337; 1973 PLC (CS) 161; and 2002 PLC (CS) 225.
6. The Counsel for respondent Dr. Syed Inkisar Ali argues that a current charge appointment does not confer right of promotion; that under rule 6 of the Civil Servant (Probation, Confirmation & Seniority) Rules 1975, a period of promotion on acting charge basis cannot be counted for promotion on regular basis even for seniority; that under section 21 of the General Clauses Act, the authority which can pass an order is entitled to very or rescind that order subsequently; that the respondent ranks senior to the appellant in the lower cadres of Assistant Professor and Associate Professor and that the law department's advice favour the respondent. The Counsel relies on 1991 SCMR 2330; PLJ 1998 TRC (Services) 245; 2000 PLC (CS) 1246; PLD 1992 SC 207; 2004 SCMR 497; 2000 TD (Service) 283; 1992 PLC (CS) 621; 1991 PLC(CS) 400; and 1984 PLC (CS) 287.
7. The AAG supports the impugned order.
8. It is not in dispute that the respondent Dr. Syed Inkisar Ali's date of initial appointment or promotion as Assistant Professor Pediatrics is prior to that of the appellant, it is also not in dispute that both were promoted to the rank of Associate Professor on 17-9-1987 and the respondent was placed above the appellant as Associate Professor because of the former senior position in the lower grade.
9. The dispute over the seniority between the two, however, arose when their cases were placed before the P3B-1 in October, 1993 for consideration for promotion to, the post of Professor (BS-20).
The respondent Dr. Syed Inkisar Ali and his colleague Dr. Noor Ahmed Channa did not possess the requisite academic qualification and were not eligible for promotion as Professor under the PMDC rules. The Board superseded both of them. The Board cleared the appellant who had the prescribed qualification and quantification for promotion to BS-18 and above, however, was less than 12 years required for promotion to BS-20 and was, therefore, promoted on acting charge basis. The appellant's promotion in BS-20 on acting charge basis was notified on 29-3-1994.
10. The PBS while clearing the appellant for promotion to the post of Professor (BS-20) on acting charge basis recommended supersession in respect of Dr. Syed Inkisar Ali. This is re-affirmed by the S&GAD and the Health Department in their written statements. This was also manifested in a seniority list issued on 21-3-1995, which upgraded the appellant to the rank of Professor and showed the respondent as Associate Professor. The respondent did not agitate the matter. He did not protest against his supersession nor did he challenge the seniority list issued on 21-3-1995.
Thus, the appellant's seniority over the respondent attained the finality.
11. It is true that while regularizing the promotion of the appellant as Professor (BS-20), the PSB cleared Dr. Syed Inkisar Ali as Professor (BS-20) on regular basis in the same meeting on 29-8- 1996. However, the notification dated 16 October, 1996 concerning their promotion confirms the appellant's ascendancy by describing him as Professor (BS- 20) on acting basis and Dr. Syed Inkisar Ali as Associate Professor (BS-19). This should clinch the issue.
12. The case laws relied on by the respondent will not help him. This is not a case of current charge appointment, tt is a promotion on acting charge basis conferred on the appellant by the competent forum. The case-laws PLJ 1998 TRC (Service 245 and 2000 PLC (CS) 1246 cited in this regard have no relevance to the facts of the case. Rule 6 of the Sind Civil Servants (Probation, Confirmation & Seniority) Rules 1975 quested by the respondent relates to the probation and not promotion on acting charge basis. The notification dated 16-10-1996, as already pointed out, for from ratifying any past order as is claimed by the respondent's counsel, shows the appellant in a rank higher than that of the respondent. After the respondent's supersession while clearing the appellant for promotion to BS-20 on acting charge basis and his failure to get it set aside by the competent authority, he shall, for all the, rank junior to the appellant, his seniority in the lower grades notwithstanding. The respondent's reliance on the opinion given by the Law Department on 13-4-1998 is also misplaced. The Law Department to whom the matter was referred twice, sadly, gave inconsistent opinions, though the facts did not vary, in its first advice dated 7-2-1998, the Law Department maintained the appellant's seniority and held quoting 1973 PLC (CS) 161, "the person once superseded cannot subsequently be placed senior to the person superseding him." Two months later, the Law Department changed its stance and observed rather vaguely that "Dr. Syed Inkisar Ali Iqbal Memon on promotion to BS-20 will maintain their seniority in lower grade viz BS-19."
13. The Law Department's subsequent advice in misconceived and perverse. The respondent was considered for promotion to BS-20 by the PSB in October, 1993 but he was superseded as is evidenced in the Board minutes which read: "The Board after examining the service record recommended that Dr. Syed Inkisar Ali and Dr. Noor Ahmed Channa may be superseded for promotion to the posts of Professor of Pediatrics (BSP-20) as they were holding minor diploma and according to PMDC Regulation they were not eligible for promotion to the said post of Professor."
The Board, in the same meeting, cleared the appellant for promotion on acting charge basis because he did not have the requisite minimum length of service in BS-18 and above for promotion on regular basis. Consequently, the appellant shall rank senior. Had the Board deferred the respondent or had he got his supersession, rescinded by the competent authority, his claim could have prevailed, in the given situation the impugned notification dated 31-7-2000 is void.
14. The promotion rules allow a civil servant who is otherwise eligible for promotion but does not possess the specified length of service, to be prohibited on acting charge basis, it is a legitimate and well recognized method of promotion, it needs to have the blessings of an appropriate Departmental Promotion Committee (DPC) or Selection Board (S.B), in the instant case, the appellant joined as Assistant Professor in BS-18 as a direct recruit on 28-1- 1984. He had, thus 10 years 2 months service on 29-3-1994 when he was promoted to BS-20 on acting charge basis as he did not have 12 years service in BS-18 and above required for promotion to BS-20 on regular basis.
15. The promotion on acting charge basis is purely ad hoc in nature, it shall not, till such the as it is regularized by the relevant DPC or SB, confer any vested right for regular promotion not even seniority. The appellant's plea that on completing the requisite period of 12 years service, he will automatically be deemed to be promoted to BS-20 on regular basis is not tenable. His representation to the government in Health Department seeking the regularization of his promotion w.e.f. 28-1-1996 on the completion of 12 years service in BS-18 and above was, thus an exercise in futility. The established practice requires the DPC or SB, as the case may be, to approve formally the regularization of the promotion made on acting charge basis.
16. The appellant fulfilled the condition of minimum length of service prescribed for regular promotion to BS-20 in January, 1996. He was cleared by the PSB for promotion on regular basis on 29-8-1996. He was formally notified as such on 1-6-10-1996. Under sub section 4 of Section 8 Sind Civil Servants Act, 1973 seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment of such civil servant to that post, service or cadre.
The appellant's seniority as Professor (BS- 20) shall reckon from 16-10-1996 when his promotion to that post on regular basis was notified. No case-laws cited by the appellant's counsel holds otherwise.
The upshot of the above discussion is: a. Appeal No.58/1997 lacks in merit and is dismissed. The appellant shall be treated as promoted to BS-20 on regular basis w.e.f. 16- 10-1996. The period of his promotion on acting charge basis in BS- 20 from 29-3-1994 to 15- 10-1996 being ad hoc shall not count toward ' seniority in BS-20. b. Appeal No.8/1999 is allowed to the extent that respondent Dr. Syed Inkisar Ali carries the stigma of supersession and so shall rank junior to the. Appellant as professor (BS-20). c. Appeal No. 415/2000 is allowed and as a consequence, notification dated 31-7-2000 is rescinded and the one dated 23-9-1999 is revived.
17. Parties shall bear their respective costs in the tree appeals.
Given under our hands and Seal of the Tribunal to is 29th day of June 2004, at Karachi.