' TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Civil Appeal No,384 of 2003 filed by Dr. Muhammad Amjad and another and Civil Appeal No,385 of 2003 filed by Government of Punjab through Chief Secretary as they are directed against the same judgment passed by the Punjab Service Tribunal dated 15-10-2001 vide which the appeal of the respondents was allowed and it was directed as follows:- "Appellant's promotion to the post of Associate Professor (ENT) having been kept in abeyance till 3- 12-1998 has affected his vested right of seniority vis-a-vis respondents Nos.3 and 4. I, therefore, accept the appeal, direct the respondents to consider the case of the appellant for promotion to the post of Associate Professor (ENT) in BS-19 w.e.f the date when the vacancy, in his quota, became available and thereafter a joint seniority list of the officers directly recruited and those promoted shall be issued according to the rules."
2. Facts briefly stated are that respondent Dr. Israr Ahmad was appointed as Assistant Professor
(ENT) in the Health Department on 13-1-1992. Admittedly as per the relevant rules 33% of the posts of Associate Professor were to be filled through direct recruitment and 2/3 by way of promotion.
Respondent became eligible for promotion to the post of Associate Professor in February, 1997 when four posts were available in the promotion quota. However, the department did not consider his case for promotion till 3-12-1998 when he was promoted. He filed a representation and even that was not considered whereafter he approached the Service Tribunal. In the meanwhile, in June 1998, the Punjab Public Service Commission had conducted interviews for two posts of Associate Professor, in which both the appellants were selected whereas respondent could not qualify. The Punjab Service Tribunal allowed respondent's appeal mainly on the ground that since a substantive post against promotion quota was available in 1997 and respondent was eligible to be considered, his promotion as Associate Professor should reckon from the date, the substantive post in the said quota was available.
3. Dr. Abdul Basit, learned counsel for the appellants in Civil Appeal No,384 of 2003 made the following submissions:-
(i) That it is admitted position that in terms of the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 33 % of the posts are to be filled in through direct recruitment and the remaining 2/3rd by promotion. The appellants along with respondent Dr. Israr Ahmad applied through Public Service Commission against the posts reserved for direct recruitment, the appellants qualified the test and interview in 1998 and on the recommendation of the Punjab Public Service Commission, they were selected against the posts of Associate Professor whereas the respondent could not qualify;
(ii) that there is no cavil with the proposition that the posts of Associate Professor in the promotion quota were available and the meetings of the Departmental Promotion Committee (D.P.C.) did take place on 11-5-1993, 17-8-1995, 1-10-1996 and on 3-9-1997 but since neither the appellants nor the respondent were qualified to be appointed as Associated Professor by the said date, they were not so appointed. Since respondent did not challenge the act of the department of not promoting him in time, he could not raise his claim for proforma promotion at a belated stage particularly when he failed to qualify the examination conducted by the Punjab Public Service Commission for appointment of Associate Professor- against the posts reserved for direct appointment; and
(iii) that section 8 of the Punjab Civil Servants Act, 1974 was amended by Act III of 2005 and under the amended provision, no civil servant can claim proforma promotion as of right.
4. Learned Additional Advocate General adopted the arguments of learned counsel for the appellants (in Civil Appeal No, 384 of 2003) and made following additional submissions:-
(i) that the impugned judgment is violative of section 8 of the Punjab Civil Servants Act and cannot be sustained;
(ii) that respondent Dr. Israr Ahmad was duly promoted on 3-12-1998 and although the post fell vacant earlier but the delay occurred due to procedural and unavoidable causes because the department sent the case for respondent's promotion only on the receipt of requisite documents; and
(iii) that the respondent appeared along with appellants (in the connected appeal) before the Punjab Public Service Commission for appointment against the posts reserved for direct appointment wherein the former failed but appellants were declared selected. That being so, it was not open for the respondent to claim seniority over the appellants after having not being selected by the Commission.
5. Learned counsel for the respondent Mr. Shoab Shaheen who assisted the Court on behalf of respondent at the asking of the Court, submitted as under:-
(i) that although the post for direct recruitment as Associate Professor fell vacant in February, 1997, and the case of respondent's promotion against the said post was pending decision in the department, yet, in the meanwhile the posts were filled through selectees of Punjab Public Service Commission on 27-7-1998 and respondent was promoted later on 3-12-1998 which was unfair, mala fide and discriminatory; and
(ii) that respondent had a right to be considered for promotion against the post reserved for promotion quota as soon as the substantive vacancy was available and respondent could not have been condemned for inaction of the State functionaries. In support of the submissions made, learned counsel relied on Govt. Of N.-W.F.P. v. Buner Khan (1985 SCM R 1158), Govt. Of the Punjab v.
Rana Ghulam Sarwar Khan (1997 SCM R 515) and Muhammad Iqbal v. Executive District Officer (R)
Lodhran (2007 SCM R 682).
6. We have heard learned counsel for the appellants, learned Additional Advocate General as also Mr. Shoab Shaheen, ASC who assisted the Court on behalf of respondent at the asking of the Court.
7. In accepting respondent's appeal , the learned Service Tribunal considered the availability of substantive posts in the promotion quota, the eligibility of respondent to be considered in February 1997 and the unreasonable delay caused by the department in processing his case. The Court found as follows:- "In the comments submitted by respondent No,2, it was submitted that the post of Associate Professor (ENT) to be filled through promotion, when became available, the department started moving for filling the post by gathering documents from the prospective candidates and it was only after clearance that the competent authority, appellant was promoted as Associate Professor
(ENT) on regular basis w.e.f 3-12-1998. It is said that the delay which occurred, if any, was procedural and unavoidable because the case was prepared on receipt of documents from different quarters. Explanation given is hardly convincing. It means that spade work which commenced in February 1997 ended in December 1998 playing with the rights of civil servant in such an arbitrary manner is not only unpardonable but wholly unconsciousable. Appellant suffered and felt aggrieved, undoubtedly when the post of Associate Professor (ENT) was not being filled but the last nail was driven in the coffin on 27-7-1998 when the recently arrayed respondents No,3 and 4 were inducted through direct recruitment as Associate Professors (ENT)."
8. We specifically asked the Additional Advocate General as to whether the respondent was eligible to be considered for promotion against the promotion quota by 3-2-1997, to which his answer was in the affirmative. He could not give any explanation tenable in law for non-consideration of case by the Departmental Promotion Committee. The State functionaries are mandated to act with a certain amount of reasonableness which canon of due process of law was not observed in processing respondent's promotion matter. Having acquired the requisite A experience and having authored the number of articles required for the post in question, respondent had legitimate expectancy for the post in question. The impugned judgment in these circumstances is neither against the rules nor the law declared.
9. In Sarwar Ali Khan v. Chief Secretary to Government of Sindh (1994 PLC (C.S.) 411), the appellant was working as a Superintendent (BS-16) in the Sindh Labour Appellate Tribunal when the said post was converted into that of Deputy Registrar in BS-17. However, the post was upgraded on the recommendation of the Departmental Promotion Committee. On 1-7-1988, the post of Registrar (BS-18) fell vacant and on 5-7-1988 he was appointed to the post in his own pay and status.
Ultimately, he was promoted on regular basis to the post of Registrar (BS-18) on the recommendation of the Departmental Promotion Committee vide notification dated 30-6-1991. He applied for salary of BS-18 from the date when he was posted against the post of Registrar in his own pay and status i,e, '5-7-1988. His appeal was dismissed by the Service Tribunal merely on the ground that he did not challenge . Notification dated 5-7-1988 in time, that the Department Selection Board had not cleared his case for promotion and that he had been compensated by the grant of special pay. This Court allowed the appeal on the ground that his claim can not be rejected merely on the ground of being time barred; that there was no valid reason for the Selection Board to withhold clearance for regular promotion and in absence of any valid explanation, it was not fair and equitable to refuse the prayer.
10. In Government of the Punjab through Secretary Education v. Rana Ghulam Sarwar Khan (1997 SCM R 515), the brief facts are that there were 12092 posts in College Teachers Cadre. The Provincial Government decided to, introduce a 4-tier structure for college teachers and with that object in view, it classified the posts in ratio of 1:15:34:50 in 4-tiers namely B.P.S. 20, 19, 18 and 17. It was vide notification dated 1-9-1990. However, the department took two years to make the appointments in accordance with the above ratio. On account of this, the promotion of civil servants from BS-18 to 19 was held up till 1992. They represented before the government that they should be promoted w,e,f, the date when the post was made available and in terms of notification dated 1-9-1990. The Service Tribunal allowed the relief. The provincial government challenged the judgment of the Tribunal. In upholding the said judgment, this Court was of the view that, "The delay in making the promotions occurred entirely due to the reason that the officials of the Education Department could not carry out a fairly simple exercise within a reasonable period."
11. In Government of N.-W.F.P. v. Buner Khan (1985 SCM R 1158), the facts briefly stated are that 75 % of the posts in Grade 18 in Provincial Education Department were to be filled in by promotion from among the Grade 17 officers of the said department and 25% by direct recruitment. However, no proper rotation of the vacancies for the purpose was maintained. The petitioners before this Court were directly recruited in BPS-18 on 30-12-1980 and 1-9-1982, whereas the respondents (who were promotees) were promoted to the said grade on 12-5-1984 and no joint seniority list in the said grade was notified with the result that some of the direct recruits were promoted to Grade 19 without the promotees being considered for the said promotion. The Tribunal allowed the appeal of the promotees and directed the government to promote them in grade 18 w,e,f, the date when the vacancies were available and a joint seniority list be issued accordingly. This judgment was challenged both by the government and those who were directly recruited. This Court maintained the judgment of the Service Tribunal with a slight modification i,e, instead of direction by the Tribunal, "to promote", this Court directed that "the promotees shall be considered for promotion to Grade-18 post with effect from the dates when vacancies in their quota became available and that thereafter a joint seniority list of the officers directly recruited and those promoted shall be issued according to the rules."
12. In Luqman Zareen v. Secretary Education N,-W.F.P. (2006 SCM R 1938), several school teachers were allowed proforma promotion w,e,f, the date when the substantive vacancies were available but they were not considered on account of, "the usual apathy, negligence and bureaucratic red- tapism which had deprived the petitioners of the fruits that they deserved. The petitioners could not be permitted to be punished for the faults and inaction of others."
13. In Ch. Muhammad Siddique v. Director, Special Education (1988 SCMR 88), the civil servant who was a lady teacher was granted proforma promotion because her case was not considered when the substantive post was available for no fault of her own. The Court held as follows:- "It has not been denied that the case of the respondent was placed before the D.P.C. On 23-7-1987 and was deferred due to certain deficiencies but she was later promoted on 15-5-1988. That being so, she was entitled to ask for promotion with effect from the date the post became available and/or the date when her case was deferred by D.P.C. The judgment of the Service Tribunal, in our view, is quite just and fair and does not suffer from any illegality."
14. Considering the case of the respondent in the light of the judgments of this Court, to which reference as been made above, we find that it is nobody's case that respondent was not eligible to be considered for promotion when substantive vacancy in the promotion quota was available.
That being so, the impugned judgment directing the appellants to consider the case of respondent's promotion to the post of Associate Professor in BPS-19 w,e,f, the date when the vacancy in his quota was available is unexceptionable.
15. So far as the argument of learned Additional Advocate General with reference to section 8 of the Punjab Civil Servants Act, 1974 (VIII of 1974) which was amended in terms of Act III of 2005 is considered, the same would be of no avail to the appellants because there is nothing in the amended provision which makes it retrospective in effect. Reference to the amended provision would be in order which reads as under:-- "8. Promotion.----(1) A civil servant shall be eligible to be considered for appointment by promotion in the service or cadre to which he belongs in a manner as may be prescribed; provided that he possesses the prescribed qualifications.
(2) Promotion including pro forma promotion shall not be claimed by any civil servant as of right.
(3) Promotion shall be granted with immediate effect and be actualized from the date of assumption of charge of the higher post, and shall in no case be granted from the date of availability of post reserved for promotion.
(4) A civil servant shall not be entitled to promotion from an earlier date except in the case of pro forma promotion.
(5) A retired civil servant shall not be eligible for grant of promotion or pro forma promotion.
(6) A post referred to in subsection (1) may either be a selection post or a non- selection post to which promotion shall be made as follows;
(a) in the case of a selection post, on the basis of selection on merit; and
(b) In the case of non-selection post, on the basis of seniority-cumfitness. "
16. Section 6 of the General Clauses Act provides that any repeal or amendment of a statute will not effect its previous operation unless the amended provision provides otherwise. The said section reads as under:-- "6. Effect of repeal.---Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:
(a) revive anything not in force of existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
17. In Idrees Ahmad v. Hafiz Fida Khan (PLD 1985 SC 376), the import of section 6 of the General Clauses Act came under consideration and the Court held as follows:- "Unless different intention appears from repealing enactment, repeal ipso facto not to affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; nor to influence any investigation, legal proceedings of remedy in respect of any such right, privilege, obligation, liability, penalty, forfeitures or punishment to be imposed as if repealing enactment having not been passed."
18. For what has been discussed above, we do not find any merit in these appeals which are dismissed, with no order as to costs.