' IJAZ AHMAD CHAUDHRY, J.--- Through the present constitutional petition, Bashir Ahmad Associate Professor/Head of Department of Fine Arts, National College of Arts. Shahrah-e-Quaid-eAzam, Lahore prays that an appropriate writ may be issued by directing the respondents to abstain from conducting interview for the post of Professor Fine Arts in pursuance of the Advertisement with further direction to fill the post of Professor of Fine Artc-NCA through the prescribed process of promotion Board and the case for promotion of the petitioner be directed to be considered for the said post of Professor by the said Board fairly, justly, without being influenced from any extraneous considerations.
2. Briefly the facts of the case are that petitioner joined the National College of Arts as Lecturer in the year 1979, he was promoted as Assistant Professor/Associate Professor and presently serving as Head of the Department of Fine Arts of N.C.A. The petitioner being fully eligible for promotion to the post of Professor was a legitimate expectant but the said post of Professor was filled in from direct quota instead of the prescribed promotion quota and when the petitioner agitated against this illegal and unlawful act before the concerned authorities, it was assured to him that as the newly appointed Professor through direct recruitment namely, Mst. Lala Rukh is going to be superannuated in June 2008 and thereafter this wrong shall be rectified by way of promoting the petitioner positively but the respondents did not honour their commitment, virtually offended the law and rules and in contravention of the verbal assurance and departmental rules, advertised the post of Professor Fine Arts inviting applications for filling the same through direct recruitment, which has caused serious prejudice to the petitioner's long awaited legal rights. This very injustice was brought to the notice of the respondents but they are determined to frustrate the object of law and to deprive the petitioner from his lawful right of promotion. Hence this petition.
3. Learned counsel for the petitioner contends that as per rules post of Professor has to be filled 50% from direct recruitment and 50% from promotion and the petitioner is an Associate Professor in Fine Arts and the post of Mrs. Lala Rukh become vacant on 13-6-2008 and she was appointed through direct recruitment and now the post of Professor is to be filled in by promotion.
4. On the other hand, learned counsel for the respondents contends that since 1998 the posts of professors are being filled by promotion and by direct recruitment turn by turn and the Secretary University Grants Commission on the query of the NCA has written a letter on 29-7-1998 and had given the same procedure for filling the post of Professors which is not being violated and no illegality has been committed; that in such circumstances now the post has to be filled from direct recruitment as the previous professor was lastly selected on promotion basis and now the post is to be filled in by direct recruitment.
5. In reply, learned counsel for the petitioner contends that previously the post of Professor was filled in the Fine Arts Department through direct recruitment and now the post in the Fine Arts Department should be filled only by promotion as Mrs. Lala Rukh who has retired in June, 2008 was appointed through direct recruitment.
6. I have heard the learned counsel for the parties and also perused the contents of this petition.
There is not cavil with the proposition that the posts of Professors are to be filled 50% by promotion and 50% by direct recruitment as is evident from Schedule I annexed to the Gazette Notification dated August 15, 1995 issued by the Government of Pakistan, Ministry of Education. In the letter dated 29-7-199R addressed to the Principal National College of Arts, Lahore by the Secretary University Grants Commission, it has been mentioned that the provision in the rules is that appointment is to be made on 50/50% basis through promotion and direct recruitment. Since the last appointment of Professor was made by direct recruitment, the next vacant Professor's post will be filled by promotion (Fine Arts). The next vacant post, (Design) will be filed by direct recruitment.
The third post which will become vacant on 1st August, 1998 will be by promotion. If the case of the petitioner is considered in the light of the instructions issued in the afore-referred letter, the petitioner has a right to be promoted as Professor as Mrs. Lala Rukh was appointed as Professor in the Fine Arts Department by direct recruitment and right to be promoted was accrued to the petitioner after her retirement in June, 2008 as the post of Professor was to be filled in by promotion but the respondent with mala fide intention did not promote the petitioner despite his vested right.
Admittedly the petitioner is serving as an Associate Professor, has sufficient experience and is eligible to be promoted as Professor in view of the first schedule attached to the Gazette Notification dated August 15,1995, issued by the Government of Pakistan, Ministry of Education. The apex Court in Dr. Arif Majeed v. Dr. Shuja-ud-Din Khan and 5 others 2000 PSC 600 held that if the number of available posts is odd and not equally divided, the weightage is to be given to promotion quota. Here in this case the petitioner has established on record that this time the post of Professor is to be filled by promotion and not by direct recruitment but even then the respondents with mala fide intention kept the post of Professor vacant for sufficient long time and ultimately advertised the same for filling the post by direct recruitment which is against the spirit of law. In similar circumstances the apex Court of the Country in the case of Sarwar Ali Khan v. Chief Secretary to Government of Sindh and another PLD 1994 SC 233 held that civil servants promotion on regular basis from a date subsequent to the one he was entitled to be promoted in absence of plausible explanation could not be treated as fair and equitable. In such circumstances the action of the respondents by not filling the post of Professor in the Fine Arts Department of NCA after the retirement of Mrs. Lala Rukh in June, I 2008 through promotion is illegal as the respondents are bound to follow IC the Rules.
7. Upshot of the above discussion is that I accept this petition and direct the respondents to fill in the post of Professor in the Fine Arts Department of NCA vacated by Mrs. Lala Rukh in the month of June, 2008 by promotion considering the name of the petitioner and not by direct recruitment.