Facts leading to this writ petition are that the petitioner joined Department of Communication and Works, Government of Punjab as Sub-Engineer on regular basis on 30.11.1968. The petitioner became eligible for further promotion as Assistant Engineer/Sub-Divisional Officer against reserved 20% quota from amongst Sub-Engineers on seniority-cum-fitness basis in the year 1996. Keeping in view the eligibility of the petitioner and his certain colleagues, their promotion case was placed before the duly constituted DPC in its meeting held on 14.7.1996, where they were found suitable and were recommended for promotion. Accordingly, promotion order was issued and the petitioner was posted against a vacant post of Assistant Engineer, Highway Circle, Faisalabad, where he joined and since then is performing his duties. On 10.10.2008 notification dated 22.9.2008 was communicated to the petitioner, whereby he was reverted to the post of Sub-Engineer causing a serious prejudice to the petitioner, hence this writ petition.
2. Learned counsel for the petitioner submits that the impugned notification dated 22.9.2008 is an outcome of established malice, violation of rules and well settled law aid down by the Hon'ble Supreme Court of Pakistan. Further submits that after performing the duties as Assistant Engineer/SDO and that too on the strength of promotion which was granted to the petitioner on the recommendations of DPC a lawful right had been accrued in his favour which could not be rescinded or recalled in view of well settled principle of locus poenitentiae. Adds that even otherwise, the impugned notification offends the well settled principle of natural justice as before passing the said notification neither the petitioner was served with show-cause notice nor he was allowed to explain his case in person which is a sufficient ground for setting aside the impugned notification. Learned counsel further submits that according to Section 2(2) and Section 8 of the Punjab Civil Servants Act, 1974 read with Rule 9 of the Punjab Civil Servants (Appointment and Conditions of Services) Rules, 1974 the petitioners promotion of 1996 was regular for all purpose and the usage of word `officiating' virtually amounts to travelling beyond the scope of law and rules.
Learned counsel also referred Rule 7 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules 1974 and contends that after rendering three years satisfactory service from 1996 i,e, the date of promotion, practically the petitioner had already been confirmed against the post of Assistant Engineer/SDO and a confirmed employee cannot be treated in a manner which was adopted in the petitioner's case. In support of his contentions learned counsel has referred (PLD 1970 Quetta 115), (1993 SCMR 609), (PLD 1996 SC 837) and (2008 PLC (CS) 715).
3. On the other hand, learned Assistant Advocate-General submits that the petitioner's promotion of 1996 was an officiating which cannot give any right to him for its continuation for an indefinite period. Further submits that the petitioner's regularization case was placed before the DPC on 9.9.2008 but due to the incomplete service record his case was deferred. Further submits that the petitioner's regularization of promotion case shall be placed in the next DPC and shall be considered on its own merits. Learned Assistant Advocate-General also questions the jurisdiction of this Court in view of Article 212 of the Constitution of Pakistan.
4. Arguments heard. Record perused.
5. So far the question of maintainability of writ petition is concerned, suffice it to refer Section 4 of the Punjab Service Tribunal Act which clearly bars the jurisdiction of the Tribunal in case of determination of fitness to hold a particular post or not. In this respect, the law is too much devolved and there is no doubt in my mind that in the present case which revolves around the determination of fitness to hold, a particular post, the objection of the learned Assistant Advocate General is repelled.
6. Even otherwise, the law laid down by the Hon'ble Supreme Court reported as Government of N.W.F.P. through Chief Secretary and others vs. Iqbal Jahangir Khan and another (1995 SCMR 82), Secretary to Government of N.W.F.P. and another vs. Muhammad Nawaz and another (PLD 1996 SC 837), Administrator, District Council, Larkana and another vs. Ghulab Khan and 5 others (2001 SCMR 1320), Government of Sindh through Secretary, Home Department and others vs. Abdul Jabbar and others (2004 SCMR 639) and Asim Khan and others vs. Zahir Shah and others (2007 SCMR 1451) can be relied in that respect.
7. So far the merit of the case is concerned, it is noticed that the department's entire case revolves around the stance that petitioner's promotion of 1996 was officiating, nothing more nothing less.
The resolve this controversy, it shall be appropriate to refer Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules 1974, which is as follows:-- "[13. Appointment by promotion an officiating basis:--(i) 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 filed by transfer, if none is available for transfer, the appointing authority may make appointment by promotion against such post on officiating basis.
(ii) No person shall be promoted on officiating basis unless he possesses the qualifications and experience prescribed for the post and his promotion as such is approved by the Chairman of the appropriate Selection Authority.
(iii) An officiating promotion shall not confer any right of promotion on regular basis but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.
(iv)Officiating promotion shall be made on the same terms and conditions as to pay as are prescribed for regular appointment by promotion.]"
8. The departmental representative, present in Court alongwith record, is asked certain questions who replied (after consulting the record) and those are as under:--
(i) Whether in the year 1996 a permanent post of Assistant Engineer/SDO under 20% quota of the petitioner was vacant or not?
The reply is yes.
(ii) Whether the petitioner was eligible for the regular promotion against a permanent vacancy in his quota in the year 1996 or not?
The answer is yes.
(iii) Whether the petitioner was promoted in the year 1996 against a post which fell vacant as a result of deputation, position outside the cadre, leave, suspension or appointment on acting charge basis of the incumbent or it was reserved under the rules to be filled by transfer?
After consulting the record, he departmental representative submits that none of these conditions were available when the petitioner was promoted in the year 1996.
9. If the above questions viz. replies are put in juxta-position to the rules applicable to the promotion, the only conclusion which can be drawn is that the word 'officiating' used in the petitioner's promotion of 1996 was an alien to the rules and only the usage of the said word of `officiating' cannot convert the regular promotion into officiating or otherwise.
10. The petitioner was admittedly eligible for promotion against his quota of 20% in the year 1996, his suitability was determined by the DPC, his promotion order was passed by the competent authority, he took over the charge and , right from 1996 till the passing of the impugned order he continuously performed the duties regularly against the post of Assistant Engineer/SDO.
11. Assuming for a moment that if the petitioner's promotion of 1996 was an officiating promotion, which rule or law allows the department to keep the petitioner on officiating basis for a period more than a decade and that too violating the law laid down by the Hon'ble Supreme Court of Pakistan reported as Sarwar Ali Khan vs. Chief Secretary to Government of Sindh and another (1994 PLC (CS) 411), wherein it is held:-- "When recruitment rules were notified on specified date civil servant stood qualified as having done five years' service in the higher grade with no adverse report, therefore, Department Promotion Committee could have approved civil servant on that specified date; there was no legal justification for getting clearance later and promoting him on regular basis on a subsequent date .... Civil servant's promotion on regular basis from a date subsequent to the one he was entitled to be prompted in absence of plausible explanation, could not be treated as fair and equitable."
12. In a case reported as Pakistan Railways through G.M. Lahore and another vs. Zafarullah, Assistant Electrical Engineer and others (1997 SCMR 1730), the Hon'ble Supreme Court of Pakistan categorically held: "We would like to observe that appointments on current or acting charge basis are contemplated under the instructions as well as the rules for a short duration as a stop-gap arrangement in cases where the posts are to be filled by initial appointments. Therefore, continuance of such appointees for a number of years on current or acting charge basis is negation of the spirit of the instructions and the Rules. It is, therefore, desirable that where appointments on current or acting charge basis are necessary in the public interest, such appointments should not continue indefinitely any every effort should be made to fill posts through regular appointments in shortest possible time."
13. Here I may point out that the stance of the department that the petitioner's promotion of 1996 was officiating, cannot be termed justified on any score, when it lasted for 12 long years. In a case reported as Director of Education (Schools), Lahore Region, Lahore and others vs. Muhammad Abbas (1998 SCMR 215) a situation arose before the Hon'ble Supreme Court of Pakistan when the department took a stance that the civil servant's appointment was a temporary and could be terminated on one month notice and the Hon'ble Supreme Court after discussing all aspects of the matters held: "Civil servant's appointment being regular appointment within meaning of. Section 2(2), Punjab Civil Servants Act, 1974 and having been made in prescribed manner, his services were not liable to summary termination."
14. In the present case it is noticed that the petitioner's c promotion of 1996 was in a prescribed manner against clear regular vacancy and that too in his quota of 20% and as such could not be termed otherwise than a regular promotion.
15. When it is admitted by the department that the conditions of Rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules were not attached at the time of petitioner's promotion in the year 1996, then it can safely be held that the word 'officiating', as used in the promotion order of the petitioner, was illegal and beyond the scope of Rules and it is well settled law laid down by the Hon'ble Supreme Court in the case reported as Punjab Workers Welfare Board, Government of Punjab and Human Resources Department, Lahore vs. Mehr Din (2007 SCMR 13), wherein it is held that basic order to the extent of condition was without lawful authority, therefore superstructure was to fall on ground automatically.
16.Before parting with this judgment I can refer a case reported as Jafar Ali Akhtar Yousafzai vs. Islamic Republic of Pakistan and another (PLD 1970 Quetta 115), wherein it is held: "When continuous officiation is not specifically authorized by any law and the Government/coznpetent authority continues to treat the incumbent of a post as officiating, it is only to retain extra-disciplinary powers or for other reasons including those of inefficiency and negligence, e.g. failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some cases for years together. I proper cases, therefore, Courts are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it."
17. In another case, reported as Federation of Pakistan and others vs. Rai Khan (1993 SCMR 609), the Hon'ble Supreme Court of Pakistan held: "Where a person who had completed the requisite number of years and was otherwise fit for promotion was promoted to a higher post, his promotion would be regular and not on current charge bass."
18. Taking strength from the law laid down by the Hon'ble Supreme Court of Pakistan in the cases reported as Federation of Pakistan v. Ameer Zaman Shanwari (2008 SCMR 1138) and Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others vs. Sameena Parveen and others (2009 SCMR 1), the impugned order dated 22.9.2008 is declared illegal and is set aside.
The petitioner's promotion as Assistant Engineer 'SD of the year 1996 is declared regular promotion for all purposes.
Writ petition is allowed in the above terms.