MIFTAH-UD-DIN KHAN, J.--- Through the present writ IA petition, petitioner Dr. Syed Mushtaq Ahmed Gilani has challenged the legality and propriety of the notification dated 24-2-2006 and 24-9- 2006, whereby the petitioner has been reverted from the post of Associate Professor to Assistant Professor and respondents Nos.5 and 6 have been promoted as Professor and Associate Professor respectively.
2. The petitioner alleged in the writ petition that he joined Ayub Medical College Abbottabad as Consultant (BPS-18) Anesthesia on 1-7-1996 and the Board of Governors Ayub Medical College through its meeting held on 9-8-1997 regularized his appointment and necessary notification in this regard was duly issued by the Ayub Medical College. That vide notification dated 28-5-1998, the post of petitioner was redesignated as Assistant Professor Anesthesia. Consequent upon the recommendation of selection/promotion Board of Ayub Medical College and teaching hospital, Abbottabad, in its meeting held on 19-6-2002, the petitioner was promoted to the post of Associate Professor Anesthesia (BPS-19) with immediate effect. In this regard notification was issued on 4-7- 2002. That respondent No,5 was promoted as Associate Professor Anesthesia (BPS-19) vide order dated 31-10-2003. It is pertinent to mention that only one post of Associate Professor in department of Anesthesia was authorized or sanctioned by Finance Department, Government of N.-W.F.P. When respondent No,5 was promoted. At that time, petitioner was already holding the post of Associate Professor. No second post was either created or sanctioned by the Finance Department; hence, the so-called promotion of respondent No,5 was illegal and void ab initio, creating no right in his favour. That this illegality was seriously taken note of by the Audit Department and vide audit report No,96 the Director General Audit N.-W.F.P., asked the respondents Nos.1 and 2 to take notice of unauthorized and irregular promotion of respondent No,5 Dr. Shamsher Ali and consequently his demotion and recovery of difference of pay drawn was asked. That the petitioner was shocked, when instead of demotion/reversion of respondent No,5, whose promotion was declared void being illegal, the petitioner was reverted to the post of Assistant Professor (BPS-18) from BPS-19 vide notification dated 24-2-2006. That feeling aggrieved, the petitioner filed the instant writ petition for redressal of his grievances. That during pendency of present writ petition, the respondent No,2 despite having knowledge of present writ petition, not only further promoted respondent No,5 to the post of Professor (BPS-20) but also promoted respondent No,6 as Associate Professor in BPS-19 vide notification dated 14-9-2006. That petitioner requested for permission to challenge the new notification/ orders who was granted permission vide order dated 20-9-2006 to submit amended writ petition within fortnight. That respondents Nos.5 and 6 have been promoted by bulldozing the law, rules and notifications in the matter, hence, also challenged through instant amended writ petition besides the prayer requested in the earlier petition.
3. The respondents contested the writ petition by submitting their written comments and pleaded that respondent No,5 Dr. Shamsher Ali Khan was senior and petitioner was promoted as Associate Professor against law and rules of promotion, therefore, the competent authority ordered the reversion of promotion of the petitioner on the recommendation of high powered committee. It was further pleaded that respondent No,6 has been promoted to the post of Associate Professor in accordance with revised policy of promotion. That the revising policy dated 4-7-2006 issued by Government of N.-W.F.P Establishment and Administration Department, Regulations Wing, whereby, the employees on deputation and on long ex Pakistan leave shall not be considered for promotion.
However, they shall retain their lien on existing grade at the time of proceeding on deputation or leave. Consequently, petitioner could not be considered for promotion as he had proceeded on leave after the promulgation of cited notification.
4. Malik Manzoor Hussain Advocate, the learned counsel for petitioner contended that no doubt respondent Dr. Shamsher Ali Khan is senior than petitioner but for promotion seniority-cum-fitness is required and the petitioner was found fit for promotion by the competent authority on the recommendation of Selection/Promotion Board against the existing vacancy of Associate Professor on 4-7-2002. He further submitted that respondent Dr. Shamsher Ali Khan was promoted on 31-10-2003 against the non-existing post therefore; his promotion was considered as irregular by the Deputy Director Audit and instead of either adjusting respondent No,5 after sanctioning post of Associate Professor or his reversion to the post of Assistant Professor all of a sudden and without any notice after the expiry of about four years, the petitioner was reverted to the post of Assistant Professor on 24-2-2006. He further contended that reversion of petitioner without notice and without giving opportunity of hearing was wrong, illegal and against the principle of natural justice; therefore, the present writ petition be accepted and the impugned notifications dated 24-2-2006 and 14-9-2006 be declared as illegal and without lawful authority.
5. The learned counsel for respondents raised preliminary objection that employees of Ayub Medical College have been treated as civil servants, therefore, the petitioner was required to exhaust all available remedies against the order of departmental authority, and therefore, the present writ petition is incompetent and not maintainable. He contended that even the petitioner was not eligible and qualified to hold the post of Assistant Professor, therefore, his promotion as Associate Professor was wrong, illegal and rightly recalled by the competent authority. He further contended that respondent No,5 Dr. Shamsher Ali Khan was senior than petitioner and the promotion of the petitioner was against law and rules on the subject, therefore, the authority which issued a wrong and illegal promotion order had authority to recall or revoke the same which has been done in the case of present petitioner. It was further contended that at the time of promotion of respondent No,6 the present petitioner was on ex Pakistan leave therefore, respondent No,6 Dr. Muhammad Jamil was rightly promoted as Associate Professor in the light of existing rules issued by the Government of N.-W.F.P., Administration Department dated 4-7-2006. He lastly argued that the present writ petition is without any substance and be dismissed. He placed reliance on PLD 2005 SC 803, 2002 SCM R 549 and 769 , PLD 1997 SC 304, 2001 SCM R 8 and 2004 CLC 1500.
6. Taking up the preliminary objection raised by the learned counsel for respondents, no doubt, the employees of Ayub Medical college have been treated as civil servants but in the present case, consequent upon the recommendation of Selection/Promotion Board in its meeting on 19-6-2002, the competent authority approved the promotion of the petitioner as Associate Professor on 4-7- 2002 and the petitioner was serving as such against the only sanctioned post of Associate Professor on regular basis. In the meanwhile Dr. Shamsher Ali Khan respondent No,5 was promoted Associate Professor against a nonexisting post on 20-10-2003 and this irregular and unauthorized promotion was detected by Deputy Director Audit in the month of September, 2005 and brought to the notice of respondent No,1 for demotion and recovery of irregular and unauthorized pay drawn.
It was respondent No,5 who was holding unauthorized and irregular promotion against non- sanctioned post but respondent No,1 through impugned notification dated 24-2-2006 ordered the reversion of petitioner without any show-cause notice and providing opportunity of hearing. As the petitioner was promoted on the basis of seniority-cum-fitness by competent authority on regular basis and was holding the only sanctioned post of Associate Professor from 4-7-2002 to 24-2-2006 therefore, a vested right to hold such post was created in his favour. This promotion order was neither the outcome of fraud nor misrepresentation on the part of petitioner which he enjoyed for more than 3-1/2 years therefore, under the principle of natural justice as well as rule of locus poenitentiae the petitioner has got the right to invoke the constitutional jurisdiction of this Court in prevailing circumstances, as instead of taking remedial steps against unauthorized and irregular promotion of respondent No,5, the present petitioner was condemned unheard.
7. Taking up the assertion of respondent No,5 that petitioner is not even competent to hold the post of Assistant Professor; a writ petition No,54 of 1999 was filed by respondent No,5 against petitioner which was dismissed on 7-6-2001 by this Court. In the writ petition, comments were filed by Principal Ayub Medical College and para 'G' of the comments is reproduced as under:-- "According to rule 41 of PMDC, though the petitioner is not even eligible for appointment as Assistant Professor but since he has already been appointed on the said post, he may not be removed. However, he is not eligible for further promotion, appointment to the post of Associate Professor. The petitioner is trying to claim protection of the terms and conditions of a higher post for which he has no vested right."
' Similarly, paras "E" and "F" of the letter dated 25-6-2004 sent by Chief Executive Ayub Medical College to Secretary Health, N.-W.F.P. Available at page 75 of the writ petition is reproduced as under:--- "(E) In the meantime, the promotion case of Dr. Shamsher Ali Khan and Sr. Mushtaq Ahmad Gilani against the vacant post of Associate Professor Anesthesia was placed before the Selection Board in its meeting dated 19-6-2002. The Board recommended Dr. Mushtaq Ahmed Gilani for promotion to the post of Associate Professor BPS-19.
(F) The management council in its meeting dated 23-12-2002 created another post of Associate Professor Anesthesia. Dr. Shamsher Ali Khan was promoted as Associate Professor BPS-19 against the newly created post w.e.f, 20-10-2003. Since then he is asking for issuance of seniority list to save his right and also arising already settled disputes."
8. Thus, it is obvious from the comments of Principal Ayub Medical College, as well as letter of Chief Executive of Ayub Medical College and notification dated 4-7-2002 that despite of the fact that respondent No,5 Dr. Shamsher Ali Khan was senior in BPS-18 than the present petitioner, both were considered by the selection/promotion Board and the petitioner on the basis of seniority-cum- fitness was promoted as Associate Professor against a single sanctioned post. Neither the promotion of respondent No,5 was deferred nor the petitioner was promoted on acting charge basis. Petitioner after his promotion on 14-7-2002 has been shown senior in the seniority list of Associate Professor maintained by Ayub Medical College up to 24-2-2006. Factually, the promotion of respondent No,5 against a non-existing post was irregular and unauthorized. It is not understandable that on what ground and under what authority, respondent No,5 who was serving against an irregular and unauthorized post of BPS-19 was declared as senior than the petitioner who per seniority list of Associate Professors in BPS-19 was senior than respondent No,5. Similarly, instead of rectifying the wrong, irregular and unauthorized promotion of respondent No,5 against a non-sanctioned post, the present petitioner was deprived of his vested right of holding a post of Associate Professor without any notice by condemning him unheard through the impugned notification dated 24-2-2006. Apparently, petitioner was senior in BPS-19 than respondents Nos.5 and 6 who was wrongly and illegally ignored from promotion to BPS-20 as Professor during the pendency of present writ petition vide impugned notification dated 14-9-2006.
9. Taking up the case-law cited by the learned counsel for the respondents. The case reported in 2002 SCMR 907 is regarding lease of 5 years through public auction which was extended for 30 years by the Chief Minister without public auction hence not applicable to the facts and circumstances of the present case. Similarly, the case reported in 2002 SCM R 549 and 769 are in respect of retired servants and fresh appointments. The case "Gatron Industries Limited v.
Government of Pakistan and others, reported in 1999 SCM R 1072 and 2004 CLC 1500 favours the petitioner than respondents while the case Khiali Khan v. Haji Nazir and others reported in PLD 1997 SC 304 is in respect of lathes which principle is not applicable to the present case.
10. As a corollary to the above discussion, we have come to the conclusion that instead of rectifying the irregular and unauthorized promotion of respondent No,5, the respondent No,1 has deprived the petitioner of his vested right accrued to him under the rule of locus poenitentiae as well as principle of natural justice by condemning him unheard through the impugned notifications. Thus, we accept the present writ petition and declare both the notifications dated 24-2-2006 and 14-9-2006 as wrong illegal and without lawful authority, hence are hereby set aside. Resultantly, respondents Nos.1 and 2 are directed to consider the petitioner for promotion to the post of Professor in BPS-20 in accordance with law and rules.