' JUSTICE (RETD.) RIAZ KAYANI (CHAIRMAN).---Ashfaq Hussain, appellant, was inducted as Agricultural Assistant (Extension Wing), on 26-2-1969 in the scale of Rs,275-15-320-20-500, possessing B.Sc. (Hons) Agri: qualification in the Punjab Agriculture Department, Government of the Punjab, Lahore. On 31-1-1970, he assumed the charge of Agricultural Assistant (Economics and Marketing). He was promoted on 7-11-1975 on ad hoc basis as Extra-Assistant Director Agriculture (Economics and Marketing) along with one Muhammad Afzal Khan. Later on appellant was regularized against the said post vide order dated 12-3-1986. A tentative seniority list of Extra- Assistant Directors Agriculture (Economics and Marketing) in BS-17 + Rs,150 special pay, as it stood on 31-7-1998 was issued by the authority wherein the name of the appellant figured at Serial No, l0 Final seniority list of Extra-Assistant Directors Agriculture (Economics and Marketing), Economics & Marketing Wing of Agriculture Departments as it stood on 4-10-2001 was notified on 17-1-2002 and the name of the appellant stood at Serial No,7 whereas that of Respondents Nos.3 to 8 was shown at Serials Nos.1 to 6. Earlier a Departmental Promotion Committee was convened on 28-6-2001 to consider the request of the appellant for antedated promotion as Extra-Assistant Director Agriculture (Economics and Marketing) w,e,f, 7-11-1975 and a working paper was prepared by Director Agriculture (Economics and Marketing), Punjab, Lahore, for the deliberation of the Departmental Promotion Committee. The matter kept on lingering as Departmental Promotion Committee, it seems, referred the case of pro forma promotion of the appellant to the Government of the Punjab, S&GAD, who refused to interfere by stating that the Departmental Promotion Committee should examine the case in the light of facts of each case and then the competent authority should decide the case at his own level without referring the case to Regulations Wing of S&GAD for approval. No positive response was received despite repeated reminders sent by the appellant and ultimately request for early decision was agitated in Writ Petition No,78/2001 by the appellant. The Hon'ble Judge on 8-11-2002 directed the Departmental Promotion Committee to consider the case of the appellant for pro forma promotion and communicate its decision to the appellant so that he could avail his remedy before the proper forum. Departmental Promotion Committee ultimately on 12-1-2001 declined the request of the appellant for pro forma promotion as Extra-Assistant Director Agriculture (Economics and Marketing) w,e,f, 7-11-1975 when he was promoted temporarily to the said post, as well as from 31-1-1973, the date when he became eligible for promotion to the said post and vacancies in promotion quota were available, on the ground that neither any junior to the appellant was promoted prior to him to the said post nor the judgment of the Supreme Court of Pakistan in the case of Muhammad Afzal Khan could apply to the appellant as he was not a party therein. Appellant made representation against the decision of the Departmental Promotion Committee, which was rejected on 30-4-2002. Orders dated 12-1- 2002 and 3-4-2002 passed by Respondents Nos.1 & 2 respectively are assailed in the instant appeal.
2. Respondent No,9 Muhammad Akram, who in the meanwhile retired as Extra-Assistant Director Agriculture on his application under Order 1, Rule 10 Civil Procedure Code was allowed to be made a party and is arraigned as Respondent No,9.
3. Learned counsel for the appellant stated that the promotion of the appellant as Extra-Assistant Director Agriculture (Economics and Marketing) was due on 31-1-1973 on the completion of three years service in the capacity of Agricultural Assistant (Economics and Marketing) but instead of granting him regular promotion, he was promoted on ad hoc basis w,e,f, 7-11-1975 along with Muhammad Afzal Khan and two others. It was later on that he was regularized to the said post w,e,f, 12-3-1986. It was pleaded that West Pakistan Agriculture Service Class-II Extension Wing Rules, 1964, provided that promotion to the post of Extra-Assistant Directors Agriculture (Economics and Marketing) was to be filled through promotion on the basis of 50% quota which in the year 1972 was
21. Four posts out of 21 posts were filled whereas 17 post of Extra-Assistant Directors Agriculture (Economics and Marking) remained to be filled amongst which 9 post were of promotion quota.
Appellant was eligible to be promoted has Extra-Assistant Director Agriculture (Economics and Marketing) on 31-1-1973 having completed three years of service in the capacity of Agricultural Assistant (Economics and Marketing) but was ignored. It was further canvassed with vehemence that Muhammad Afzal Khan who was promoted as Extra Assistant Director Agriculture (Economics and Marketing) on ad hoc basis along with the appellant, assailed the order of temporary promotion on the ground that he was entitled to pro forma promotion w,e,f, 28-11-1972 through an Appeal bearing No,129/92 to this Tribunal whict was allowed on 3-5-1995. The appeal of his contestants Muhammac' Anwar Rahi and Muhammad Aslam was rejected by the Hon'blc Supreme Court on 18-10-1995 in a Civil Petition No,862-L/95 upholding the judgment of Punjab Service Tribunal in Appeal No,129/92. Learned counsel for the appellant contended that the case of the appellant being exactly similar, relief to him on the basis of the judgment of Muhammad Afzal Khan should have been allowed but rank discrimination was done by the department on their refusal to accede to the supplication of the appellant seeking pro forma promotion w,e,f, 31-1-1973 the date on which he should have been considered for promotion as Extra-Assistant Director Agriculture (Economics and Marketing) as a vacancy existed.
4. Learned District Attorney supported the impugned orders however, Departmental Representative present with the requisite file admitted that a seat of Extra-Assistant Director Agriculture (Economics and Marketing) was available on 31-1-1973 in promotion quota and appellant was eligible to fill the said post. Counsel for Respondents Nos.3 to 8, on the other hand, maintained that pro forma promotion of the appellant could not be claimed as no junior to the appellant was promoted to the said post before the appellant and the promotion cannot be claimed as a matter of right much less pro forma or ante-dated promotion. Counsel for Respondent No,9 admitted that the appellant had retired and he also could lay claim to pro forma promotion being in promotion quota prior to his retirement but he did not do so, however, opposed the case of pro forma promotion of the appellant.
5. I have attended to the arguments addressed by the respective counsel and have also seen the record.
6. According to the West Pakistan Agriculture Service Class-II Extension Wing Rules, 1964, vacancies of Extra-Assistant Directors Agriculture (Economics and Marketing) were required to be filled in by promotion from amongst members of West Pakistan Service holding post of Agricultural Assistant and Instructors in the Region where the vacancy occurred, who possessed three years experience in Agriculture Economics and Marketing. In other words, promotion to the post in question was to be made on the basis of selection irrespective of seniority, the only criterion was eligibility. The eligibility was based on three years experience in Economics and Marketing. Appellant joined service in the Agriculture, Extension Wing on 26-2-1969 as Agricultural Assistant and then he joined Economics and Marketing Wing on 31-1-1970 and he completed requisite experience of three years on 30-1-1973. He, therefore, became eligible for promotion as Extra- Assistant Director Agriculture (Economics and Marketing) w,e,f, 31-1-1973. In the working paper prepared by the Director Agriculture (Economics and Marketing), Punjab, Lahore, for the consideration by the Departmental Promotion Committee, it was stated that the sanctioned strength of the post of Extra-Assistant Director Agriculture (Economics and Marketing) was 21 as is stood on 31-1-1973 which were required to be filled in 50% by initial recruitment and 50% through promotion as per existing Service Rules at that time, four posts of Extra-Assistant Directors Agriculture (Economics and Marketing) were filled in on 1-7-1967. Out of the remaining 17 posts, 9 posts belonged to promotion quota. For these 9 posts of promotion, quota, the following Officers were to be promoted as per their eligibility having three years service experience in Economics and Marketing Wing of Agriculture Department:--
1. Mr. Abdul Sattar Bhatti; Mr. Muhammad Hafeez Javed;
3. Mr. Muhammad Anwar Rahi;
4. Mr. Anwar Hussain Shah;
5. Mr. Iftikhar Ahmad Cheema.
6. Mr. Zahoor Ahmad;
7. Mr. Muhammad Afzal Khan;
8. Mr. Muhammad Akram; and
9. Mr. Ishfaq Hussain (appellant).
' Appellant along with Muhammad Afzal Khan were promoted as Extra-Assistant Directors Agriculture (Economics and Marketing) on ad hoc basis on 7-11-1975; Muhammad Afzal Khan agitated his promotion w,e,f, the date he became eligible and the post was available. His appeal was accepted by the Punjab Service Tribunal which decision was upheld by the Supreme Court of Pakistan and he was allowed pro forma promotion w,e,f, 28-11-1972. Mr. Muhammad Akram next to Mr. Muhammad Afzal Khan retired from service on reaching the age of superannuation w,e,f, 5-1- 1999 at his on request and next senior was the appellant. Director Agriculture (Economics and Marketing), Punjab, Lahore recommended the pro forma promotion of the appellant w,e,f, 31-1-1973 but surprisingly the Departmental Promotion Committee vide its deliberation on 12-1-2002 declined the request of pro forma promotion to the appellant on the ground that no junior was promoted before him to the said post and that he was not a party in the case of Muhammad Afzal Khan.
7. According to the instructions issued by the Government of the Punjab, pro forma promotion is allowed in four cases:--
1. Where a junior has been promoted, senior is entitled to be promoted, if disqualification is attached.
2. Where at the time of promotion the senior although eligible was under suspension or was not fit to be promoted otherwise and on the removal of disqualification he became entitled to pro forma promotion.
3. When promotion cannot be allowed to the incumbent civil servant as a result of criminal case, he may be promoted from back date after the case ends favourably.
4. Where due to negligence and apathy of the department although the post exists and the incumbent civil servant is eligible.
' The criteria adopted by the Government, which is in vogue has the backing of established practice. In the present case although a junior to the appellant may not have promoted yet the department dilly dallied the promotion of the appellant for no good reason. Although the post of Extra-Assistant Directors Agriculture (Economics and Marketing) was available from 31-7-1973, the appellant along with Muhammad Afzal were promoted in the year 1975 on ad hoc basis. I wonder why temporary promotion was allowed when the appellant was fully eligible to be promoted to the said post. Muhammad Afzal Khan challenged the ad hoc promotion and claimed pro forma promotion w,e,f, 28-11-1972 which was allowed to him by the Service Tribunal in the first instance and later on the said decision was upheld by the apex Court. Not applying the said rule to the case of the appellant would amount to rank discrimination. It has bewildered me why Respondent No,9 who has retired from service at his own request w,e,f, 5-1-1999 is opposing the case of the appellant. He could have derived the benefits quoting Muhammad Afzal Khan's case to his benefit which he did not. So far so good, but why is he opposing the case of the appellant for pro forma promotion, especially when now he is not in service, is difficult to understand. Other respondents particularly, Respondent No,7 were inducted as Extra-Assistant Directors Agriculture (Economics and Marketing) through direct recruitment in 1985. It is now a settled law that civil servant is entitled to promotion from the date when vacancy arises in his quota and it has been admitted in the case of the appellant by the Director Agriculture (Economics and Marketing), Punjab, Lahore that the vacancy arose on 31-1-1973 on which date appellant was fully eligible to be promoted to the said post.
8. The upshot of the discussion, therefore, is that the appeal of the appellant is accepted.
Impugned orders dated 12-1-2002 passed by Respondent No,2 and 30-4-2002 by Respondent No,1 are set aside. The case of the appellant for pro forma promotion w,e,f, 31-1-1973 shall be considered by the Departmental Promotion Committee to be convened by Respondent No,1 without any further delay and all the consequential benefits shall follow. There shall be no order as to costs.