' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--Through the instant appeal, appellant has claimed regularization of his promotion to the post of Professor (Paediatrics) w,e,f, 2-3-1991 and seniority over and above the private respondents Nos.3 to 5.
2. Succinctly, the facts of the appeal are that in 1969 appellant obtained degree of M.B.B.S. And joined Liaquat Medical College, Jamshoro as Registrar and most of his period spent in the Department of paediatrics. In 1972 he proceeded to United Kingdom for higher education and obtained degree of M.R.C.P. Equivalent of F.C.P.S. In Pakistan. On return he was taken up as Senior Registrar (B-18) in the same College w,e,f, 21-8-1980 equivalent to the post of Assistant Professor (B-18). After being declared successful by the Sindh Public Service Commission, appellant was appointed as Assistant Professor in Medical Colleges, Health Services Sindh on 21-3-1982. He was promoted to the post of Associate Professor on 17-3-1985. In 1991 appellant's case for promotion was considered and he was promoted to the post of Professor (B-20) vide Notification dated 2-3- 1991 but on acting charge basis instead of on regular basis. He protested and continuously approached the Authorities concerned for removing of stigma of "on acting charge basis" and for his promotion on regular basis. Lastly, he submitted such representation on 14-11-1996, which remained pending for considerable period. He then filed C.P. No,D-119/1997 before the Honourable High Court for issuance of direction to official respondents to dispose of his pending departmental representation, 'however, during its pendency appellant received a copy of letter dated 1-4-1997 of Secretary, Health Department, (endorsed to him by Principal. L.M.C. Jamshoro as per endorsement dated 10-10-1996) informing appellant that his request for regularization has been considered and rejected by the competent authority. Appellant has now filed the instant appeal before this Tribunal on 10-11-1997, praying that his promotion to B-20 may be reckoned on regular basis w,e,f, 2-3-1991 and he be declared senior in the cadre of Professors in the Sindh Health Medical Collegiate Service.
3. In their respective written statement, official as well as private respondents controverted the claim of appellant. It is the case of respondents that appellant was rightly promoted "on acting charge basis" as by that time he had not completed 12 years of service which is a prerequisite condition for promotion on regular basis to B-20. His case was then considered in Provincial Selection Board-I on 13-3-1995 but was deferred due to low quantification in over-all grading as according to promotion policy, the over all quantification must be 70% or above but appellant's quantification was much less than the required one. In the said meeting of P.S.B-I held on 13-3-1995 private respondent No,3 (Dr. D.S. Akram) was considered and promoted to B-20. Such Notification was issued on 7-5-1995. Once again appellant's case for promotion to B-20 was considered by the P.S B-I on 29-8-1996 but appellant was deferred. However, private respondent Nos.4 and 5 were considered and cleared for promotion to B-20 on regular basis and such Notification was issued on 16-10-1996. It has further been stated that since appellant was earlier deferred twice and meanwhile private respondents were promoted to B-20 on regular basis, therefore, in the seniority list of Professors (B-20) the private respondents in view of section 8(4) of the Sindh Civil Servants Act, 1973 read with Rule 10 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, were rightly shown seniors to the appellant and no irregularity and illegality has been committed by the department. It has also been contended that the appeal is time-barred.
4. In support of appeal, learned counsel for the appellant in his oral as well as in written arguments contended that as a matter of fact appellant was already cleared by the Provincial Selection Board-I for promotion to the post of B-20 on regular basis in the year, 1990 but in the Notification dated 2-3-1991 appellant was shown promoted to B-20 on acting. Charge basis instead of on regular basis, presumably for the reason that he had not completed 12 years service. While referring unreported judgment in Appeal No,28/1992 decided by the learned N.-W.F.P. Service Tribunal, Peshawar (Professor Dr. Paiz Muhammad v. N.-W.F.P. Through Chief Secretary, N.-W.F.P.
And others) decided on 25-10-1992, learned counsel contended that as per Regulation framed by the Pakistan Medical and Dental Council duly approved on 15-1-1984, the minimum qualification and experience required for promotion to the post of Professor (B-20) is 3 years teaching experience as an Associate Professor in the respective specialty provided that total experience as Assistant Professor and Associate Professor is not less than 8 years and that admittedly appellant at the time of issuance of Notification dated 2-3-1991 fulfilled the requisite experience of 8 years in teaching as an Assistant and Associate Professor. He also stated that since Regulations of Pakistan Medical and Dental Council 1984 are special law the same have preference over the General law viz the Notification dated 27-2-1984 issued by the Government of Sindh, S&GAD (Regulation Wing), whereby the minimum length of service for promotion to B-20 is 12 years. Learned counsel further submitted that appellant's case was twice placed before the P.S.B-I i,e, firstly in the years, 1995 when he was deferred due to low quantification and secondly in the year, 1996 when he was deferred for the same reasons for want of A.C.Rs, but factually and legally appellant cannot be penalized for non-completion of A.C.Rs which in fact were sent for the first time for countersignature to the Principal. L.M.C., Jamshoro in the years 1998 vide Health Department's memo. Dated 10-9-1998 and that after countersignature and completion of A.C.Rs, appellant's quantification in every year exceeds 70%. In the last, learned counsel stated that in any case even as per General law/Rules notified vide Notification dated 27-2-1984, appellant completed 12 years service on 21-3-1994, therefore, in the givdn circumstances he is entitled to pro forma promotion to the post of Professor (B-20) on regular basis w,e,f, 21-3-1994. On the point of limitation, learned counsel argued that appellant was not expecting that his promotion on acting charge basis would remain in field for such a long period, therefore, in view of case of Sarwar Ali Khan v. Chief Secretary, Sindh and another, PLD 1994 SC 233, the appeal cannot be treated or thrown out as time-barred.
5. In rebuttal, learned counsel for the private respondents have challenged the very maintainability of the appeal on the ground that the impugned order dated 10-10-1997 is an original order against which no departmental appeal which is a condition precedent for invoking the jurisdiction of this Tribunal has been filed. Besides, the appeal is time-barred, as appellant has neither challenged the Notification dated 2-3-1991 whereby he was promoted to B-20 on acting charge basis so also his subsequent deferment in the year 1995 and 1996. On merits, they have argued that since the appellant has not completed the minimum length of service of 12 years in 1991, therefore, he was promoted to B-20 on acting charge basis, and his name was rightly not included in the seniority list of Professors (B-20). They have further contended that appellant was twice deferred and superseded and thus lost his seniority so far present private respondents are concerned. Lastly, they have stated that appellant on attaining the age of superannuation has already been retired from service w,e,f, 13-1-2006, therefore, the question of seniority is no more alive and appeal being infructuous may be dismissed. They placed reliance on 1987-PLC (C.S.)-168, 2003 PLC (C.S.) 212, 2005 PLC (C.S.) 1400 and 2005 PLC (C.S.) 1068.
6. Learned Assistant A.G. Appearing for official respondents also argued that matter at length and adopted the arguments advanced by learned counsel for private respondents and prayed for dismissal of appeal.
7. We have considered the above submissions, perused the case papers with the able assistance of learned counsel for the parties and also have gone through the case-law referred to by them.
8. Before dealing with the merits of the appeal, we like to deal with legal objections with regard to maintainability of appeal and limitation raised on behalf of respondents. Contention that letter dated 1-4-1997 (communicated to appellant through endorsement dated 10-10-1997) is an original order against which no departmental appeal had been filed, as such, the appeal is not maintainable in terms of section 4 of the Sindh Service Tribunals Act, 1973, has no force. As it appears from the perusal of record, appellant was promoted to B-20 on acting charge basis vide Notification dated 2-3-1991. He protested against the stigma of 'on acting charge basis' but with no response. Again vide Notification dated 7-5-1995 private respondent No,3 was promoted on regular basis and finally private respondent Nos.4 and 5 were promoted on regular basis vide Notification dated 16-10-1996. Feeling aggrieved, appellant challenged the said Notification being an original impugned order by way of his representation/departmental appeal dated 14-11-1996 which was rejected as per letter dated 1-4-1997, which being an appellate order, appellant has filed the instant appeal, which is proper and maintainable within the meaning of section 4 of the Sindh Service Tribunals Act, 1973. Next contention that appeal is time-barred, has also no force. Appellant was continuously approaching the Authorities concerned for promotion on regular basis. Lastly, he filed departmental representation on 14-11-1996 which was rejected as per letter dated 1-4-1997 on merits and not as being time-barred. In a case of Muhammad Anwar v. General Manager Pakistan Railways Lahore and others, 1995 SCMR 950, it has been held that appellant's departmental appeal was not dismissed cm the ground of limitation but it was dismissed on merits, the delay, if any, in making representation, thus in the circumstances deemed to have been condoned. Similar was the view taken in Muhammad Boota's case reported in 1999 SCMR 2652 = 1999 PLC (CS.)
1. And Sardar Aftab Ahmed's case reported in 1999 PLC (C.S.)
40. In this case, appellant's departmental representation was not rejected as being time-barred but on merits, therefore, this appeal filed within 30 days of communication of letter dated 1-4-1997 is well within time.
9. On merits, the case of appellant is that he was appointed on regular basis as Assistant Professor on 21-3-1982 and was promoted as Associate Professor on 17-3-1985. He was promoted to the post of Professor on acting charge basis' on 2-3-1991 instead of on regular basis for the reason that by that time he had not completed 12 years minimum length of service on 20-3-1994. Thereafter the meeting of Provincial Selection Board-I was held on 13-3-1995 but this time appellant was deferred on account of low quantification due to non-availability of A.C.Rs, of few year's. Once again meeting of the P.S.B-I was held on 29-8-1996 and this time too the appellant was deferred for the same reason. He was ultimately, however, cleared for promotion to B-20 on regular basis in a meeting of P.S.B-I held on 25-3-1999. Admittedly, appellant was senior to the private respondents but he was ignored while his juniors were promoted on regular basis. The only basis for deferment of appellant's case was low quantification due to non-availability of A.C.Rs, for seven years i,e, 1987, 1988, 1990, 1992, 1993, 1994 and 1995, which for the first time were sent to the Principal, A Liaquat Medical College, Jamshoro for countersignature by the Health Department, Government of Sindh through letter dated 10-9-1998. In our considered view, this ground of non-consideration for want of A.C.Rs, could not be allowed to be made a sole foundation to deprive the appellant from being considered to be promoted on regular basis, because the duty to fill up the A.C.Rs, lies with the superior officers. The remissness of superior cannot be made a ground to deprive appellant. Before preparation of list of candidates to be considered for promotion, there was sufficient period with the Authorities concerned to get it completed/countersigned by the countersigning officer. As. It appears, this was deliberately done just to deprive the appellant from promotion to B-20 on regular basis. It may be stated that appellant was promoted to B-20 'on acting charge basis' vide Notification dated 2-3-1991 for the reason that by that time he had not completed 12 years minimum qualifying service for promotion to B-20 on regular basis. In that eventuality, the private respondents who were juniors to appellant could not have been considered for regular promotion, so long as appellant hold the acting charge appointment, as per Rule 8-A(2) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which reads as under; "8-A(1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge basis.
(2) So long as a civil servant holds the acting charge appointment, a civil servant junior to him shall not be considered for regular promotion but may be appointed on acting charge basis to a higher post.
(3) xxxxxxxxxxxxxxxxxxxx.
' However, the Departmental Selection Board-I in utter violation of the mandatory provision of law promoted three of appellant's juniors to the post of Professor (B-20) on regular basis, without any justifiable reason and showing any urgency, thus deprived the appellant from being promoted to B-20 on regular basis. Although appellant completed 12 years' minimum length of service on 21-3- 1994 for the purpose of promotion to B-20 as per S&GAD's Notification dated 27-2-1984, yet the meeting of Provincial Selection Board-I was convened on 13-3-1995 in which private respondent No,3 Dr. D.S. Akram was considered and promoted to B-20 while appellant was deferred due to low quantification in over all grading on account of non-availability of A.C.Rs, for seven years which were sent for countersignature for the first time to the Principal, L.M.C., Jamshoro vide letter dated 10-9-1998 and for such inordinate delay on the part of Government functionaries appellant cannot be penalized. Had the same been completed in time, he could have definitely been cleared for promotion on regular basis in Selection Board's meeting held on 13-3-1995. He was finally cleared for promotion in a P.S.B. Meeting dated 25-3-1999 which amounted to a promotion delayed through no fault of the appellant by three years. Such being the case appellant is entitled for promotion on regular basis w,e,f, 7-5-1995 when the promotion of respondent No,3 was notified.
10. Contention that since appellant has already been retired from service on attaining the age of superannuation w,e,f, 13-1-2006, therefore, the question of his seniority is no more alive, has no force, so far the facts and circumstances of the instant case are concerned. As observed above, appellant is entitled for promotion on regular basis to the post of B-20 w,e,f, 7-5-1995, therefore, he would be entitled to the financial benefits of the same for the period from 7-5-1995 till March, 1999, as appellant had continuously performed the functions of Professor (B-20) from March, 1991 on acting charge.
11. In the light of what has been discussed above, the appellant shall be deemed to have been promoted on regular basis w,e,f, 7-5-1995 and he would be entitled to all the financial benefits w,e,f, 7-5-1995 onwards. The appeal in the above terms stands allowed, leaving the parties to bear their own costs.
12. Announced in open Court.