S. ABDUL JABBAR KHAN (CHAIRMAN).-Dr. (Mrs.) Shamim Raza Bukhari, Professor of Bacteriology, Institute of Hygiene & Preventive Medicine, Lahore, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which she has impleaded Government of the Punjab through the Secretary to Government, Health Department, Lahore and Dr. Nazir Alam Naru Professor of Parasitology, Institute of Hygiene & Preventive Medicine, Lahore, as respondents. By virtue of this appeal it has been prayed that the impugned orders dated 29th October 1975, 22nd September 1976 and 29th April 1979 may be set aside and the appointment of respondent No, 2 as Professor from 3rd May 1973 be held to be illegal and ineffective on the rights of the appellant and the appellant be declared senior to respondent No, 2 as Professor. A claim has also been made for awarding of the costs in favour of the appellant.
2. Brief facts of the case are that the appellant was appointed as Assistant Professor in the Institute of Hygiene and Preventive Medicine, Lahore (hereinafter stated as Institute for the sake of brevity) with effect from 1st June, 1961 and respondent No, 2 was also appointed as such with effect from 3rd May 1966 in the same Institute. A Seniority List which was notified by the Punjab Government at the relevant time had .Placed respondent No, 2 as junior to the appellant in the grade of Assistant Professor. On 3rd May 1973 respondent No, 2 was promoted as Professor of Parasitology whereas the appellant was appointed as Professor of Bacteriology with effect from 2nd October, 1974. The appellant took exception to this promotion of the respondent on various grounds and submitted a representation dated 24th July, 1975 followed by an other application dated 17th April 1976 for early decision on the issues raised by her. This representation resulted in the issue of show-cause notice dated 26th September 1975 to respondent No, 2 as to why his promotion be not cancelled and the reply of the respondent was sent to the appellant for her counter-comments. The matter remained pending without any final decision and the appellant had to take recourse to the Martial Law Administrator and the Government of the Punjab for early decision on the said issue on 30th January 1978. On one of the applications the Health Department informed the Governor of the Punjab that the matter was still under consideration and that it would be shortly decided and the appellant would be informed accordingly. It was only on 6th August 1978 that the Health Department informed the appellant that respondent No, 2 was eligible for promotion as he had put in 7 years teaching experience within the meaning of Regulation. Aggrieved against this decision of the Department the appellant submitted through a registered post a representation dated 1st October 1978 to the Governor of the Punjab under section 21 of the Punjab Civil Servants Act, 1974 for final orders on both the issues involved in this case. Meanwhile, seniority list dated 22nd September, 1976 of Professors of the Institute was notified by respondent No, I in which respondent No, 2 was placed senior to the appellant. This was also contended by the appellant. Ultimately on 29th April 1979 the appellant was informed that her representations have been finally rejected on all the issues. "Hence this appeal.
3. We have heard the learned counsel for the appellant as well as the learned counsel for the respondent and the District Attorney and have perused the record of this case carefully with their assistance. It has been submitted that the appellant being senior in the lower grade she continues to be senior to respondent No, 2 in the higher grade, despite the fact that she was promoted later as Professor. According to the appellant her seniority could only have been affected if she had been considered and superseded at the time when respondent No, 2 was promoted. The learned counsel for the appellant has made a grievance that at the time of his promotion respondent No, 2 did not fulfil the essential condition of 7 years teaching experience for Assistant Professor's post which was then a condition precedent for his promotion under the Rules. This promotion was hit by the M. L. A. Instruction No, 21 according to which all promotions which were made during the period from March, 1972 to June, 1977 in relaxation of the Rules were deemed to be ad hoc appointments. It was argued that such like illegal promotion could not stand in the way of seniority of the appellant who entered this field of service in 1961 as Assistant Professor and was notified in the seniority list as senior to respondent No, 2 as Assistant Professor. It was vehemently argued on behalf of the appellant that interpretation of word 'abroad' by the Health Department as well as by the learned counsel for the respondent that it meant only being 'out of door' was ridiculous and contrary to the meanings which the term connotes. It was argued that this was done only to save the promotion of respondent No, 2 by those who were at the helm of affairs at the relevant time by hook or crook.
Elaborating this argument farther the learned counsel further submitted that the amended Regulation would be applicable as exception as it was made in favour of those who had gone with the understanding that the training inside the country would count as teaching experience. It was submitted that in the case of respondent No, 2 no such understanding has been brought on the record to make exception applicable in this case.
4. The learned counsel for the appellant has also pointed out that he was excepting an argument from the respondent's side that the appeal of the appellant is time barred. As a matter of abundant caution he had requested for condonation of delay, but, according to him, such like argument was without any basis as the appellant's representation remained unanswered for a pretty long time and when the same was answered it was piecemeal-sidetracking the important issues raised by her. It was only when she filed her representation under section 21 of the Punjab Civil Servants Act, 1974 that a comprehensive answer on both the issues was provided to her and she realizing that it was no use to knock the door further for appeal against injustice and inequity flung in her face by the Department.
5. On the other hand, the learned counsel for respondent, through his written statement, has vehemently contested the case of the appellant both on legal as well as factual plane. According to the respondent, the appeal of the appellant was hopelessly time barred and she was stopped to agitate her case through various representations as her earlier representation was rejected as early as in 1975. Her later efforts cannot be considered as justified as the same were under a well- calculated scheme to keep the limitation alive by making frivolous representations to various authorities. It was her duty in 1973 to go to the Civil Court in the absence of the existence of the present Service Tribunal and later on to file her appeal within 30 days if her case was in any manner turned down by the Civil Court. He has relied on the latest auto hortative announcement of the Supreme Court of Pakistan and of this Tribunal in the case of Salamat Ali (Appeal No, ?).
6. While dealing with the facts he has conceded that the appellant had joined as Assistant Professor in the Institute of Hygiene & Preventive Medicine, Lahore, five years earlier to respondent No, 2, but has contended that the same would not affect the seniority of the respondent No, 2 as the appellant was Professor in Bacteriology while the respondent No, 2 was Assistant Professor of Parasitology. According to the learned counsel both these posts were not interchangeable for the sake of reckoning inter se seniority of the parties. According to him the point of seniority in the lower grade was not maintainable. He has conceded that at the time of promotion to the rank of Professor the respondent lacked the basic qualification for that appointment as his teaching experience was not seven years but five years only. On the other hand, it has been submitted by the respondent's counsel that his two years of studies for higher degree for Master at Jinnah Post- Graduate Medical Centre, Karachi, was correctly added to his experience of teaching because Regulation No, 20 of Pakistan Medical Council provided the same. He has supported the interpretation of word 'abroad' as given by the Health Secretary in his comments meaning thereby going out of door. It was further submitted that in view of this dictionary meaning of word 'abroad' the Health Department was fully justified to treat two years' study period of the respondent No, 2 at Karachi Jinnah Post-Graduate Medical Centre as teaching experience. He has relied for this purpose on certain principles of the said Medical Centre that these two years of study was also included teaching.
7. We have given or anxious thought to the contentions raised by both the parties and will first of all deal with the issue of limitation which has been hotly contested between the parties. What we find is that the appellant submitted an application dated 24th July 1975 to the Government stating therein that by virtue of her seniority over respondent No, 2 in the grade of Assistant Professor she continued to be Senior to him as Professor also, in spite of the fact that respondent No, 2 was promoted earlier than her. This claim was based on Explanations I to III of rule 10 of the West Pakistan Health Department Medical Educational Institutions (Class I) Service Rules, 1971. That representation also included a further claim regarding the promotion of respondent No, 2 as being against mandatory rules on the ground that he lacked the 7 years minimum experience which was prerequisite for such appointment. It was also further challenged that the condonation of two years' service in his case which he spent as a student at the Jinnah Post-Graduate Medical Centre, Karachi, from 1968 to 1969 was uncalled for as well as unjustified. Her application waslreplied by the Section Officer (Admn.) Health Department vide letter dated 29th October 1975 that the seniority as Assistant Professor was relevant only if the two posts were in the same line and that reliance on Explanation III below sub-rule (1) of rule 10 was misconceived. She was further told that the seniority of the parties had to be determined with reference to the date each one was promoted as Professor. This letter we find was silent with regard to the issue of irregular promotion of respondent No,
2. To get the second issue clarified she reminded the Government vide her application dated 17th April 1976 which was followed by another application to the Martial Law Administrator on 27th November 1977. It was made known to her that the Secretary, Health Department, had informed the Secretary to Governor, Punjab, vide letter dated 30th January 1978 that the issue was being thoroughly examined and the decision was likely to be taken and conveyed to the appellant shortly. In the meanwhile a Provisional Seniority List dated 22nd September 1976 of Professors was notified by the Government in which the appellant was shown junior to respondent No,
2. To this she filed objection also. It was on 6th August 1978 that she was informed by the Secretary Health Department that in view of the Pakistan Medical Council's Regulation No, 20 (in its amended form as passed in the year 1974) her contention that two years training of respondent No, 2 at the Jinnah Post-Graduate Medical Centre Karachi (1968 to 1970) could not be counted as 'teaching experience' was not correct. Now realising that both her claims stood completely rejected she filed a representation dated 1st October 1978 under section 21(2) of the Punjab Civil Servants Act, 1974 to the Governor of the Punjab who was the next higher authority. This representation was rejected by a final order dated 29th April 1979, against which she filed the present appeal on 28th May 1979. We have also attended to the argument of the learned counsel for the appellant that the omission to file the appeal straightaway before this Tribunal was firstly under the bona fide belief that she could get the relief from the Departmental Authority and secondly in view of the law interpreted by this Tribunal did not require her to file such appeal within 30 days on the expiry of 90 days after the representation. In this matter the learned counsel for the appellant has referred to the cases decided by this Tribunal reported as 1977 PLC (C. S. T.) 165 and 1980 PLC (C. S.) 605. It was pointed out to us that the earlier view of this Tribunal as contained in 1977 PLC (C. S. T.) 165 was later on changed in 1980 as per decision in Imtiaz Hussain's case . In view of the above she has claimed, if necessary, condonation of delay vide this Tribunal's decision reported as 1980 PLC (C. S.) 605. We have carefully examined this aspect of the case and find that the appellant was under a bona fide belief that the reply dated 29th October 1975 of the Section Officer, Health Department, being not in the name of the Governor, was not from the competent authority and further that she was under the belief that she would get the relief from the Departmental Authorities which prevented her from approaching us. We have no hesitation to reiterate or earlier view as laid in 1980 PLC (C. S.) 605 which now stands further fortified by the observation of the Supreme Court in PLD 1975 SC 79 where the delay was condoned when it was found that there were quick changes in the constitution of law. We are of the considered opinion that the said observation of the Supreme Court would be applicable to the facts o this case also as the appellant has diligently been pursuing her case before the Departmental Authority throughout and as suc4- is entitled to the condonation of delay in view of the law as laid down in PLD 1961 SC 105, PLD 1967 SC 506, NLR 1978 Services (Lah.) 535 and out own decision in the case of Ghazanfar Ali Chazdhry (Case No, 956/838 of (?). Although in or opinion the case of the appellant is not hit by the limitation, as urged by the learned counsel for the respondent, yet as a matter of abundant caution to safeguard her interest we condone the delay. It will be useful to mention here that the limitation is a procedural law and except for section 28 where under a person, by adverse possession, acquires a title in an immovable property, it does not extinguish a right, but only bars the remedy. Therefore, in a case where the remedy is barred but the right exists, the law should not be strictly interpreted against a person whose right is to be adversely affected. (This we have borrowed from Mst. Sardar Begum v.
Shirin Taja .
8. After having disposed of objections about limitation, we now proceed with the respective contentions of the parties about the merit of the case. It is a well-established law that a senior officer in a lower grade continues to be senior in the higher grade as well and the earlier promotion of a junior person does not affect the right of a senior person. The senior officer only loses his right of seniority when he is superseded by a junior officer in the matter of promotion to the higher grade. The fact of supersession can only be assumed when the junior and the senior are both considered together for the higher grade and the junior person is promoted in preference to the1 2 senior officer. In the present case the respondent No, 2 was promoted in 1973 as Professor of Parasitology when the appellant's case was not before the Competent Authority for consideration.
Under the rules, distinct qualification and experience have been laid down for the posts of Professors of Para sitology and Bacteriology. In fact the comparison of the merits of the two Assistant Professors could not and did not take place. In the matter of supersession it is a must that the cases of both the officers should b before the Selecting Authority. Therefore, the appellant who was no considered along with the respondent would not be considered superseded. In 1973 PLC (C. S. T.) 1, this issue was resolved by the following passages:---
(a) Supersession is involved only in a case where a junior is promoted in preference to a senior on a consideration of their comparative merits and not otherwise. Even taking the ordinary meaning of the word 'supersession' it necessarily implies comparison of service records of the senior along with the junior for the senior to be considered superseded, if his junior is promoted. Such consideration of the case of the appellants along with respondent No, 2 not having been taken place, no supersession is involved. The fact that they were not qualified to be considered for appointment as Senior Professor of Economics shows that they were not eligible for the appointment, but not they were superseded by the appellant in being appointed as Senior Professor. In the case of appointments against a subject post, that is in a special subject, requiring specialized qualification, only such Professors, who possess proficiency in the subject are eligible, but they are equally proficient in their own subject, there is no comparative lack of efficiency involved, and when promoted in their subject, they cannot by reason of later promotion be deemed to have been superseded by a Professor junior to them by the accident of a vacancy occurring in that subject earlier than in their subject.
(b) Interpreting the Explanation so as to advance the remedy and suppress the mischief, which is a well-recognized principle of interpretation, we hold that it is applicable to all cases of promotion of a junior not made to a higher grade permanently though the promotion continues later permanently in the higher grade and is not intended to cover only those cases where promotion is specifically stated to be temporary in the first instance. In view of the above interpretation of Explanation I, we hold that the case of promotion of Respondent No, 2 falls quite clearly under Explanation I.
(c) This explanation safeguards the interests of senior officer whose merits are not considered at the time of promotion of a junior officer. It lays down the principle that if the comparative merits of junior and senior persons are not considered then the promotion of a junior person does not entitle him to seniority over his seniors. In order to relegate a senior person to a lower place, it is necessary that his merits should have been considered. If his merits are not considered, then he cannot be said to have been superseded. Simultaneous consideration of comparative merits is the essence of this Explanation for the purpose of supersession. Because of the peculiar circumstances of the case the Appellant, Dr. Ihsan-ul-Islam and Muhammad Saeed Sheikh could not be considered for the subject vacancy of Economics. Thus they are protected by Explanations III & I, therefore, agree with the operative part of the Majority."
We, therefore, bold that the appellant being not superseded would rank senior in the senior grade also as compared to the respondent No, 2.
9. With regard to the objection raised by the appellant relating to the promotion of the respondent No, 2 on the basis of his requisite qualifications of 7 years' teaching experience according to the 1971 Rules, we are of the view that the objection would be lethal and would certainly hit the promotion so bestowed upon respondent No, 2 by the competent authority. The reason is very obvious for or Above finding. Respondent No, 2 was sent for training at Karachi and therefore would not be covered by the word 'abroad'. To interpret the word 'abroad' as 'going out of door' would be simply preposterous. "Abroad" means and has C always meant a person who goes out of the country. To equate the training at Karachi with the training outside the country would be ride callous. The amended Resolution of 1974 by Pakistan Medical Council would not take retrospective effect because it created a new confessions or right which was applicable only to those persons who were sent for training after the said Resolution or at the time of the said Resolution. Reliance is placed on PLD 1961 SC 166. We also do not accept the contention of respondent No, 2 that the Government was justified by counting his two years training from 1968 to 1970 at the Jinnah Post- Graduate Medical Centre, Karachi, as teaching experience as Assistant Professor on the ground that it was covered by a definition of the term 'teaching experience' as given by the Pakistan Medical Council in its Resolution No, 20 of 1974. We take this decision for the reason that the term of 'teaching experience' has not been defined in 1971 Rules as rule 2(2) of the said Rules states that the words and expressions used but not defined in these Rules will have the same meaning as given by the Pakistan Medical Council in its Ordinance of 1959 and the regulations made by the said Council.
Ordinarily, experience means the period actually spent on practising a particular profession and in a particular capacity. When the Rules laid down '7 years experience as Assistant Professor" it obviously meant that the person concerned should have worked as Assistant Professor for the said period. In the case of respondent No, 2 his training as Assistant Professor for two years at the Iinnah Post-Graduate Medical Centre, Karachi, during the relevant period would not be of any avail to him in this context. He was deputed to undergo the course at Karachi for obtaining Degree of M. Phil.
Therefore, he cannot be said to have worked as Assistant Professor and gained the teaching experience during the said period. He completed his training in 1970. It was one year thereafter that in 1971 the original Resolution No, 20 was passed by the Pakistan Medical Council which is reproduced below : - "The initial period of deputation/study leave spent abroad should be counted as teaching experience of the post from which a person was sent on deputation provided he succeeded in acquiring the Post-Graduate Qualifications for which he was sent during the specific period. "
Obviously, the case of respondent No, 2 is not covered by the above Resolution for two ()pylons reasons. Firstly, the Resolution was not given retrospective effect. Secondly, the scope of the Resolution was restricted to 'the initial period of deputation/study leave spent abroad'. Even if we take into consideration the later amendment of the said Resolution the respondent No, 2 again would not be fulfilling the requirements of this concession. There is no such understanding given in favour of the respondent No, 2 which should entitle him to count his experience inside the country towards teaching experience instead of going abroad. We are of the considered decision that promotion of the respondent No, 2 in the year 1973 was not in accordance with the prescribed rules and as such it was not a promotion on regular basis. Such like promotion at the most can have the status of ad hoc appointment and nothing more, nothing else. We, therefore, hold that promotion o respondent No, 2 from 3rd May 1973 to 5th September 1977 was an ad hoc promotion. He will, therefore, count his seniority as Professor from 3rd May 1975. We are recording this finding in view of the law laid down in NLR 1981 T D 51 placing reliance as well as on 1975 SCMR 457 and repel the objection of the respondents that we are precluded from giving this verdict.
10. We, therefore, accept the appeal with no order as to the costs and hold that in the grade of Professor the appellant is senior to respondent No, 2, thus setting aside the Seniority List dated 22nd September 1976, order dated 29th October, 1975 and final order dated 29th April, 1979. 1980 PLC (C. S.) 605 PLD 1970 Pesh. 194 1 2