The petitioner has filed the writ petition with different prayers, however, during the arguments the petitioner contends with the prayer that notification dated 2.8.2007 whereby the juniors were promoted and the petitioner was singled out be declared as illegal and the petitioner's case for further promotion be directed to be considered with effect from 15.1.2003.
2. In response to the Court's notice Respondent No, 1 filed objections/reply and under para-19 it is submitted "the DPC held on 30.7.2007 recommended 07 Assistant Directors (04 on regular basis & 03 on officiating basis) while one seat is still vacant as it was kept reserved for Research cadre." In reply against ground para-B, Respondent No, 1 admitted the petitioner's seniority viz Respondent No, 5.
3. Keeping in view the comments filed by Respondent No, 1, the Secretary Environment, Government of the Punjab was directed to afford a chance of personal hearing to the petitioner as well as to Respondents No, 5 to 14, examine the entire record treating the writ petition as representation and then decide the matter afresh.
4. In compliance to the Court order Major (R) Shah Nawaz Badar, Secretary Environment, Government of the Punjab examined the case thoroughly, heard the petitioner as well as Respondents No, 5 to 14 and submitted his report and in the concluding pares it is contended, "the case of the petitioner Maqsood Pervaiz Qureshi, has been examined in detail and it is decided that it will be placed before the DPC, to be held in the last week of May 2008. Since a vacant post of Deputy Director (Technical) is available in EPA. His promotion will be discussed and decided along with other officers on the basis of seniority-cum-fitness."
5. Today the Deputy Secretary Environment, Government of the Punjab has placed order dated 5.7.2008 which is as follows:-- "GOVERNMENT Of The PUNJAB ENVIRONMENT PROTECTION DEPARTMENT
NO.SO (ESTTNEPD/10-1/2008. Consequent upon the recommendations of Departmental Promotion Committee Meeting held on 04.07.2008 under the chairmanship of Secretary EDP, Mr. Maqsood Pervaiz Qureshi, Research Officer/Assistant Director (Research) BS-17 is hereby promoted as Deputy Director (Technical) BS-18 on officiating basis under Rule-13 of Punjab Civil Servant (Appointment and Condition of Services) Rules, 1974.
2. Upon promption Mr. Maqsood Pervaiz Qureshi, Deputy Director (Technical) BS-18 is hereby posted as District Officer (Environment), Lahore against a vacant post with immediate effect.
ZAFAR IQBAL SECRETARY ENVIRONMENT Dated Lahore the 5th July, 2008 NO. & DATE EVEN.
A copy is forwarded for information and necessary action to:-
1. The Accountant General, Punjab, Lahore.
2. The Director General, EPA, Punjab, Lahore.
3. The District Coordination Officer, Lahore.
4. The Deputy Director (Admn), EPA, Punjab, Lahore.
5. Officer concerned.
6. P.S to Secretary EPD, Punjab, Lahore.
7. P.S to Secretary Regulations, Government of the Punjab, S&GAD, Lahore.
Office order file.
(S. M. RAZA)
SECTION OFFICER (ESTT.)"
6. The learned counsel for the petitioner submits that the petitioner is being victimized since long with no fault of him, the department has accommodated the private respondents out of way, the applicable rules were violated only to accommodate the blue-eyed and the petitioner was singled out on the basis of whims and moods, pick and choose and finally when the Court took a serious notice, the petitioner is promoted in a half hearted manner tagging a word 'officiating' despite the clear stance of the department that a post of Deputy Director (Technical) was vacant. On the other hand, the learned Assistant Advocate General Punjab Lahore submits that as the petitioner is going to be superannuated attaining the age of 60 in the next month i,e, August 2008 it shall be immaterial for him to have a promotion on regular basis or on officiating whereas the petitioner's grievance is redressed through the order dated 5.7.2008.
7. Arguments heard; record perused.
8.It is surprising that in the comments submitted by Respondent No, 1, in the report submitted by Major (R) Shah Nawaz Badar dated 25.4.2008 it is admitted in so many words that a post of Deputy Director (Technical) is vacant and the petitioner shall be considered on the basis of seniority-cum- fitness.,
9. Particularly, when the petitioner's seniority is not disputed, eligibility is not disputed petitioner's case was presented before the duly constituted Departmental Promotion Committee, petitioner's promotion was recommended, post against which the recommendations of the DPC were made was a vacant post, the petitioner is promoted through order dated 5.7.2008 then using of word officiating seems to be a mockery to the rules and smells a mala fide. The petitioner who had requisite qualification, made himself eligible for promotion to the slot of Deputy Director on regular basis and in the presence of clear vacancy on regular basis rather smothering his right by promoting the petition on officiating basis. Rule 13 of the Punjab Civil Servants (Appointment and Condition of Service) Rules 1974 envisages appointment by promotion on officiating basis. Sub- section (i) of Section 13 reads as under:-- "Where a post falls vacant as a result of deputation, posting outside cadre, leave, suspension or appointment on acting charge basis of the incumbent or is reserved under the rules to be filled by transfer, if none is available for transfer, the appointing authority may make appointment by promotion against such post on officiating basis. "
9-A. A bare reading of the concluding provisions of law makes it abundantly clear that for initiating appointment, certain contingencies are prerequisite. None of them exist in the present controversy.
A clear cut vacancy on regular basis was available, why the petitioner was not promoted on regular basis is beyond apprehension particularly when the petitioner fulfilled all the qualifications and there was no disqualification standing against his name, at least none has been pointed out on the basis of the documents on record. The petitioner was, therefore, eligible for promotion on regular basis being the suitable as demonstrated and the petitioner shall be entitled for all consequential benefits.
10.As discussed earlier that the petitioner's seniority, eligibility, suitability as well as availability of the clear post of Deputy Director (Technical) was available, then the petitioner promotion could only be termed as regular one not on officiating basis.
11.In the attending circumstances, the petitioner's promotion to the post of Deputy Director (Technical) on officiating basis shall be treated as regular promotion for all purposes and the writ petition is disposed with the above observations.